Essential Infrastructure for
Information Delivery
Appendices to a Study
Prepared for
Arizona Strategic Enterprise
Technology (ASET) Office
By Data Site Consortium, Inc.
November 2011 (V03 Draft)
An Arizona Roadmap for Reducing Barriers Based in Arizona Law, Policy, and
Rules Hindering Establishing Public Rights-of-Way as Essential Infrastructure
for Information Delivery
ASET Essential Infrastructure for Information Delivery Appendices Page 2
Arizona Strategic Enterprise Technology (ASET) Office
Essential Infrastructure for Information Delivery
Study Prepared for:
Arizona Strategic Enterprise Technology (ASET) Office, Division of the Arizona Department of Administration (ADOA)
Aaron V. Sandeen, Arizona State Chief Information Officer
Office: 602-364-4770, E-Mail: [email protected]
Michael Golden, Director of Broadband Planning
Office: 928-301-0136, E-Mail: [email protected]
Galen Updike, Manager of Broadband Planning
Office: 602-364-4794, E-Mail: [email protected]
Study Prepared by:
Data Site Consortium, Inc.
Mike Keeling, Project Manager and DSCI President
Office: 602-265-9003, E-mail: [email protected]
Mark Goldstein, Senior Consultant
Office: 602-470-0389, E-mail: [email protected]/
Disclaimer:
This report was researched and prepared by Data Site Consortium, Inc. for the Arizona
Strategic Enterprise Technology (ASET) Office (http://isd.azdoa.gov/), a division of the Arizona
Department of Administration (ADOA). However, any findings, opinions, conclusions or
recommendations expressed herein are those of Data Site Consortium, Inc. and do not
necessarily reflect the views of ASET, ADOA, and other agencies, employees, and officials of
the State of Arizona. While Data Site Consortium, Inc. has exercised reasonable skill and care in
producing this report, its accuracy cannot be guaranteed and it is not intended and does not
purport to provide any legal advice. All trademarks and copyrights are the property of their
respective owners.
ASET Essential Infrastructure for Information Delivery Appendices Page 3
Arizona Strategic Enterprise Technology (ASET) Office
Essential Infrastructure for Information Delivery Report
Index of Appendices
Appendix A - ASET EIID Project Interviews
Appendix B - ASET EIID Resources & References
Appendix C - Arizona Broadband Conduit Deployment Act of 2012 Draft
Appendix D - Arizona Broadband Infrastructure Coordination Office Draft
Appendix E - Arizona Limiting Statutes and Rules
Appendix F - PCIA State Model Siting Legislation
Appendix G - PCIA Wireless Facilities Siting Model Ordinance
Appendix H - Hopi Tribe Tower Colocation Lease Agreement Sample
Appendix I - Arizona Public Service (APS) Pole Attachment
Master License Agreement (MLA) Template
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Appendix A - ASET EIID Project Interviews
Index of Project Interviews
Arizona Department of Transportation (ADOT)
Arizona State Land Department (ASLD)
Arizona Corporation Commission (ACC)
Arizona New Mexico Cable Television Association (AZ-NMCTA)
Arizona Wireless Association (AZWA)
CenturyLink (Formerly Qwest Communications)
Salt River Project (SRP)
Union Pacific Railroad
BNSF Railway
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Appendix A - ASET EIID Project Interviews
Arizona Department of Transportation (ADOT)
The Arizona Department of Transportation (ADOT - http://www.azdot.gov/) builds and repairs
the roads for the citizens of Arizona, operates the Motor Vehicles Division (MVD), and
publishes Arizona Highways magazine. ADOT Divisions include the Transportation Services
Group, Communications & Community Partnerships, Office of the Inspector General, Policy and
Governmental Affairs, Aeronautics Division, Intermodal Transportation Division, Motor Vehicle
Division, and the Multimodal Planning Division, which is home to the Geographic Information
Systems for Transportation (GIS-T) Section.
ADOT Contacts:
Suzan Tasvibi-Tanha, Strategic Business Services Manager, Information Technology Group,
Office: 602-712-6409, E-Mail: [email protected]
Paula Gibson, Deputy Chief Right of Way Agent, Intermodal Transportation Division, Office:
602-712-8758, E-Mail: [email protected]
Sam Maroufkhani, Deputy State Engineer, Intermodal Transportation Division, Office: 602-712-
7391, E-Mail: [email protected]
Dallas Hammit, Deputy State Engineer, Operations, Intermodal Transportation Division, Office:
602-712-8274, E-Mail: [email protected]
R. Brian Rockwell, Assistant Chief Right of Way Agent, Right of Way Group, Office: 602-712-
8787, E-Mail: [email protected]
Sabra Mousavi, Chief Right of Way Agent, Right of Way Group, Office: 602-712-6840, E-Mail:
ADOT Interviews:
Mike Golden and Brad Zerbe of ASET (formerly GITA) along with Mike Keeling and Mark
Goldstein of Data Site Consortium, Inc. conducted two interviews with ADOT personnel on
February 9, 2011 and February 23, 2011. During the meeting, parties discussed the role of the
ADOT ROW Group, of which the ADOT attendees represent, as well as horizontal and vertical
rights-of-way (“ROW”) responsibilities, issues, and opportunities.
Scope of activities of the ADOT ROW Group:
Longitudinal and vertical ROW
Not including ADOT permitting processes
Negotiates with underlying land owners (fee absolute owners) for an interest-in-the-land,
which include
o Easements
o Licenses
o Full fee absolute ownership
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Scope of existing longitudinal ROW limited to only “roadway purposes” not including
water, power utility, or telecommunications, beyond ADOT Intelligent Transportation
Systems (ITS) unless specifically negotiated/renegotiated for with land owners. Limited
by:
o Federal law and funding
o Arizona Revised Statutes and funding
o Arizona Proposition 400 based funding
o Local zoning rules
ROW process steps:
Planning/Engineering > surveying > appraisals > offer to underlying landowner > offer
acceptance > if no acceptance, condemnation procedure > order to show cause (court
action) > 90 days to vacate the land > ROW interest in the land.
ADOT’s experience:
o 70% of the underlying landowners tend to accept the appraisal offer (short cycle)
o 30% of underlying landowners take the process into condemnation (longer ~ 2
years)
o Very few underlying landowners pursue a subsequent court action (> 2-years)
Underlying landowners include:
Federal entities (easements only)
o BLM (easy to come to terms with)
o BIA (more difficult to come to terms with)
o Forest Service (more difficult to come to terms with)
Native American entities
o In conjunction with the Bureau of Indian Affairs (BIA)
State
o ASLD, controlling trust land
o ADOT, controlling direct purchase of land
o ADOA representing land interests of land owned by other AZ State agencies
Local governments
Private owners
ADOT Permitting process steps:
Is an activity separate from establishing ROW?
Is an activity associated with a short-term activity within an ADOT roadway or
associated ADOT controlled land?
Permitting process is primarily under the auspices of the ADOT District Offices (District
Engineers)
Potential changes in federal rules:
Modifying FHWA funding limits and assignments to include conduit and/or fiber
FCC Broadband initiatives may influence FHWA and others
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Potential changes in Arizona statutes and rules:
Modifying ARS
Modifying Proposition 400
Modifying AZ agency PSPs (policies/standards/procedures)
Constitutional constraints
o Gift Clause
o Land grant limitations (highest and best use issues)
Vertical ROW issues:
Pole attachment (controlled by different group within ADOT)
Attachment to bridges, overpasses, and other vertical assets, though power may not be
present
Land leased for cell sites
Vertical asset communications maintenance by deployer/provider in cooperation with
ADOT under permit
Other ROW opportunities:
As highways widen, conduit may go under lanes, but archeological and environmental
clearances remain necessary
Rail (currently in use as well as abandoned paths)
Pipelines
Power utilities
ADOT evolution in ITS and vehicle sensor tracking may help drive telecom expansion
Highway operational issues after construction:
Service corridors
Control of service access and safety issues significant for conduit and fiber maintenance
and connections, but may be ameliorated by placing of vaults and regeneration
capabilities off the highway near off ramps and other highway adjacent ADOT ROW
Relocating existing telecommunications infrastructure with roadway re-construction
ADOT Shared ROW Recap:
ADOT Shared ROW project back in 2000-2001 was approved by the Attorney General’s
office and resulted in an issued RFP, but unfulfilled due to market conditions at the time.
Would have allowed long haul fiber deployment across major transportation corridors
from East to West and North to South across the state by commercial carriers who would
provide in kind access to ADOT of empty conduit from the build, anticipating one
conduit being reserved for ADOT ITS applications and the other supporting regional
connectivity and economic development.
SB1272 from 45th
Arizona Legislative Session:
Passed by both houses, signed by the Governor of April 4, 2001, and thought to perhaps
expand ADOT authority to use acquired ROW for telecommunications purposes, but
remains unconfirmed.
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Appendix A - ASET EIID Project Interviews
Arizona State Land Department (ASLD)
The Arizona State Land Department (ASLD - http://www.land.state.az.us/) mission is to manage
State Trust lands and resources to enhance value and optimize economic return for the Trust
beneficiaries, consistent with sound stewardship, conservation, and business management
principles supporting socioeconomic goals for citizens here today and generations to come, as
well as to manage and provide support for resource conservation programs for the well-being of
the public and the State's natural environment. ASET and ASLD co-manage the Arizona
Broadband Assessment Project (AZ BAP) to identify the availability and speed of broadband
services, and the location of broadband infrastructure throughout Arizona under the American
Recovery and Reinvestment Act of 2009 (ARRA) and the Broadband Data Improvement Act
(BDIA), and in conjunction with the National Telecommunications and Information
Administration (NTIA).
ASLD Contacts:
James L. Adams, Director, Real Estate Division, Office: 602-542-4621, E-Mail:
Ruben Ojeda, Manager, Right of Way, Office: 602-542-2648, E-Mail: [email protected]
Gary J. Irish, GIS Manager, Office: 602-542-2605, E-Mail: [email protected] (Retired 10/11)
Vanessa P. Hickman, Deputy State Land Commissioner, Office: 602- 542-4621, E-Mail:
Sandy Kelley, Manager, Commercial Leasing Section
Theresa M. Craig, Assistant Attorney General, Arizona Attorney General’s Office, Main: 602-
542-5025
ASLD Interview:
Mike Golden of ASET (formerly GITA) along with Mike Keeling and Mark Goldstein of Data
Site Consortium, Inc. conducted an interview with ASLD personnel on March 23, 2011. During
the meeting, parties discussed the role of the ASLD regarding horizontal and vertical rights-of-
way (“ROW”) responsibilities, issues, and opportunities.
The Federal Enabling Act and the Arizona State Constitution Mandate, as interpreted by Arizona
and U.S. Supreme Courts, require ASLD to value all State land transactions at their “highest and
best use of land,” wherein “fair market value” is a minimum allowable value. This value is the
ASLD Lease/ROW fee for a given State land transaction.
ASLD takes into consideration: the viability of the proposed use; extent of improvements
necessary to the use; compatibility with surrounding uses; local land use; planning and
zoning; access; hydrology; geology; archaeology and environmental implications.
ASLD is not allowed to directly or indirectly reduce the fees it charges in-kind-for
“positive community benefits (e.g., economic, educational opportunities, medical
ASET Essential Infrastructure for Information Delivery Appendices Page 12
services, etc.) associated with providing broadband services to affected rural
communities.” ASLD has an “undivided duty of loyalty to trustees” (trustees must be sole
recipient of any benefit of State land transactions).
ASLD auctions 10-year communication leases and ROWs having a term of 10-years or
longer.
ASLD communication lease/ROW fees are not based on “parcel of the whole” determinations,
but rather are based on “value in use” constructs. Communications lease fees generally comprise
fees on land interest transactions for purposes of supporting telecommunications towers, etc.
ASLD communications ROW fees generally apply to longitudinal rights of way, such as those
required for fiber optic routes. Communications lease fees for both ASLD communication leases
and communication ROW are based on an assigned monetary value for the “telecommunications
usage,” not on a theoretical best use of the affected “parcel of the whole.” ASLD bases the
telecommunications usage charge on at least one historic valuation study commissioned by itself.
This ASLD policy appears to differ with its policy of assessing and pricing utility leases and
ROW on “parcel of the whole” determinations, even though longitudinal ROW is required for
both utilities and fiber optic ROW easements. See Lassen V. Arizona Highway Dept., 385 U. S.
458 (1967) holding “The State must compensate the trust in money for the full appraised value of
any material sites or rights of way which it obtains on or over trust lands, not diminished by the
amount of any enhancement in value of the remaining trust lands. Id. 385 U. S. 465-470.
Terms of ASLD communication leases are typically for 10-years. Land leases for cellular towers
are specifically for 10-years in duration. Terms of communications ROWs can be for longer
periods than 10-years, but the fee is reassessed every 10-year-portion of the longer ROW term.
Optionally, an escalator linked to the CPI index may be used in lieu of reappraisal.
Typically, ASLD processing times for issuance of ASLD communication leases and ROWs are
12-14 months. Effective minimum processing time of communication ROW is 9-10 months,
which is typically associated with adding communication ROW to existing roadway, utility or
other existing ROW. Existing ADOT “clearances” generally accelerate the process for ASLD.
However, ASLD requires a separate process and issuance of utility ROWs as distinguished from
communications ROWs. This requirement for separate processes is somewhat based on the
recognition that utilities tend to desire separate pricing and rights for utility ROW as opposed to
communications ROW, even when the two requirements physically overlay each other.
Submission of an application does not guarantee a ROW will be issued. ASLD points out that
failure of issuing of ASLD communication lease or ROW often results from applicant lack of
pursuit through completion or incompleteness of their application. Conversely, ASLD notes that
where a roadway, utility or other ROW exists and the applicant pursues, most often a
communication ROW will also issue. However, county roads are often an ad hoc situation where
special use can be problematic. ASLD recommends applicants engage someone with “real
estate” background and significant experience in ROW processes.
Usually leases for communication tower placement can be accomplished in 6-9 months and no
individual appraisal is needed. Utility power needs its own ROW, though there could be a joint
application for power and fiber to the site. Site access may be through ROW or by helicopter.
Pole attachment by telecom providers requires a separate ROW application for use and appraisal.
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Appendix A - ASET EIID Project Interviews
Arizona Corporation Commission (ACC)
The Arizona Corporation Commission (ACC - http://www.azcc.gov/) is established via Article
15 of the Arizona Constitution and governed by five elected Commissioners. The ACC has
responsibilities that go beyond traditional public utilities regulation including regulation of
telephone services, facilitating the incorporation of businesses and organizations, securities
regulation, and railroad/pipeline safety. By virtue of the Arizona Constitution, the
Commissioners function in an Executive capacity, they adopt rules and regulations thereby
functioning in a Legislative capacity, and they also act in a Judicial capacity sitting as a tribunal
and making decisions in contested matters.
ACC Contacts:
Ernest G. Johnson, Executive Director, Office: 602-542-3931, E-Mail: [email protected]
Steven M. Olea, Director, Utilities Division, Office: 602-542-7270, E-Mail: [email protected]
Elijah Abinah, Assistant Director, Utilities Division, Office: 602-542-6935, E-Mail:
Terri Ford, Chief Telecommunications Manager, Office: 602-542-0858, E-Mail: [email protected]
Will Shand, Public Utilities Analyst Manager
ACC Interview:
Mike Golden and Brad Zerbe of ASET (formerly GITA) along with Mike Keeling and Mark
Goldstein of Data Site Consortium, Inc. conducted an interview with ACC personnel on April 5,
2011. During the meeting, parties discussed the role of the ACC regarding horizontal and vertical
rights-of-way (“ROW”) responsibilities, issues, and opportunities.
The Telecommunications Act of 1996 in Section 224 narrows the scope of ACC jurisdiction over
utility pole attachments for federally-defined utilities in Arizona (“Utilities”) unless Arizona has
filed “State Pole Attachment Certification” with the FCC that it imposes its jurisdiction over
Utility ROW. The term "pole attachment" means any attachment by a cable television system or
provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or
controlled by a utility. Because Arizona has not filed the Certification with the FCC, it does not
currently have jurisdiction over utility pole attachments for utilities in Arizona as defined by
federal law (Utilities), including any person that is a local exchange carrier or an electric, gas,
water, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rights-
of-way used, in whole or in part, for any wire communications including pipelines.
However, the ACC may have jurisdiction over utility pole attachments for non-federally-defined
utilities in Arizona (“utilities”). These potentially utilities include railroads, cooperatively
organized utilities, and utilities owned by Arizona or subdivisions of the Arizona. But, in most
cases, utilities owned by subdivisions of Arizona (counties and cities) often are under the direct
ASET Essential Infrastructure for Information Delivery Appendices Page 14
control of their respective counties and cities, and thus not under the jurisdiction of the ACC.
The ACC feels it has insufficient resources and interest in filing for “State Pole Attachment
Certification” at this time. For information on states exerting such jurisdiction, see FCC Public
Notice, DA 10-893, WC Docket No. 10-101 titled “States That Have Certified That They
Regulate Pole Attachments” at http://transition.fcc.gov/eb/Public_Notices/DA-10-893A1.html.
As regards railroads, the ACC’s focus is on regulating safety at crossroads in particular and
operational safety in general. Railroad placement may be grandfathered and either in current use
or abandoned. The ACC has no interest in the variety of uses by railroad companies for their
granted ROW including for telecommunications. See the included ADOT map of Arizona
Railroads (Service Status and Ownership) for a view of these pathways.
As regards pipelines, the ACC has more jurisdiction over retail utility companies such as
Soutwest Gas. Long haul pipelines such as those owned by El Paso Natural Gas, Transwestern,
and TransCanada are treated differently and with less jurisdiction exerted. The Federal Energy
Regulatory Commission (FERC) has oversight on pipeline siting. ACC authority over any
pipeline ROW use for fiber placement seems uncertain and interest limited.
As regards electricity transmission lines, there is a separate siting commission and associated rate
case. Again, ACC authority and interest regarding any power transmission ROW use for fiber
placement seems limited.
Where squabbles over pole attachment rates between utilities or utilities with other commercial
entities occur, the ACC may adjudicate, but would rather avoid. These matters are often
adequately resolved by the parties behind closed doors.
The ACC has broad authority over telecommunication rate cases, but no similar authority for
wireless rates. They have the option for oversight of wireless terms and conditions, but are not
currently exercising it. As wireless broadband becomes more popular and universal service
funding evolves at a state and federal level to address broadband services, that will likely evolve
accordingly.
Where native-owned ILECs have bought out non-native-owned ILECs at fair market value
through USDA Rural Utility Service (RUS) loans, the transfer/sale of such ILECs must be
reviewed and approved by the ACC.
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Arizona ILEC and LATA Boundaries Map
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Arizona Area Codes Map
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Appendix A - ASET EIID Project Interviews
Arizona New Mexico Cable Television Association (AZ-NMCTA)
The Arizona New Mexico Cable Television Association (AZ-NMCTA -
http://www.azcable.org/) works closely with state and federal lawmakers to implement a positive
legislative program for the cable television industry. AZ-NMCCA has successfully obtained state
theft of service legislation, codified a state sales tax exemption, put a cap on state license fees,
and was instrumental in developing the 1984 & 1996 Federal Cable Communications Acts. AZ-
NMCCA offers guidance and assistance to cable television systems in dealing with local
government relations issues.
AZ-NMCTA Contacts:
Susan Bitter-Smith, Executive Director, Office: 602-955-4122, E-Mail: [email protected]
AZ-NMCTA Interview:
Mike Golden and Brad Zerbe of ASET (formerly GITA) along with Mike Keeling and Mark
Goldstein of Data Site Consortium, Inc. conducted a special session with AZ-NMCTA’s
leadership and membership at their Annual Meeting on February 9, 2011. During the meeting,
attendees discussed the role of the AZ-NMCTA regarding horizontal and vertical rights-of-way
(“ROW”) role, issues, and opportunities.
Mike Keeling of Data Site Consortium, Inc. first gave a presentation titled “Right-of-Way as
Essential Infrastructure for Statewide Information Delivery” to the assembled AZ-NMCCA
members, followed by an open discussion. AZ-NMCTA members generally are looking for a
seat at the table with both State and local authorities in the evolving regulatory environment and
seek to elevate the conversation.
Multiple attendees commented on municipal deployments not being a level playing field for
telecom compared to other utilities. Some of the issues and examples presented were:
Most dominant issue was the lead time and difficulty in permitting projects. Significant
impact to project timelines and costs with often the need to manage uncertainty in process
progress. Observation that if you “push it” you may go to the bottom of the pile.
However, there some receptiveness for the paying of expediting fees under a two tier
system when needed for project completion commitments and/or schedule certainty, but a
residual suspicion that such fees are extortive and the necessary work could have been
done faster.
When subsequent road widening or placement of new municipal infrastructure occurs,
electrical and gas utilities are often reimbursed for moving their infrastructure assets
while telecom companies are not. Treatment should be equal and there should be
adequate notice and planning for relocation needs, as well as visibility for costs.
Repaving of street surfaces after trenching vary greatly between municipalities and are
often viewed as an opportunity to achieve fundamental road maintenance above and
beyond the remediation of the infrastructure deployment. The municipality themselves
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may only repave the disturbed area but require telecom companies to go far beyond that.
The burden should be equalized.
Municipalities should encourage and help coordinate collocation where open trench
infrastructure is being place for telecom or other utility purposes to help minimize
industry costs and traffic disruptions.
Highway and significant road projects are often grant funded. Telecom providers should
get early notice to evaluate and incorporate to their planning and budgeting. Often
projects are impending or underway before visible to the telecom community.
Mike Golden of ASET introduced the “two highways for the cost of one” concept and explained
how ADOT and other road building entities could be encouraged and/or required to place empty
conduit along construction routes to provide a significant inventory of fiber deployment ready
opportunities over time. The concept was generally welcome by AZ-NMCTA attendees with
follow on discussion of reduced costs and time to market, as well as potential issues with shared
use. There was a desire to see the collection and distribution of best practices from other states
and municipalities as a guide to what may be done here.
Middle mile for backhaul from rural and remote areas remain a major challenge in Arizona. An
example given was for fiber installation from Winslow to Sholow where two years was spent
upfront in permitting and six years overall to deploy. BTOP grants often have an unrealistic
timeframe and constraints due to permitting difficulties and cross-jurisdictional issues.
Microtrenching for fiber deployment minimizes construction costs and road damage, but has yet
to shorten permitting cycles as well as road remediation requirements, and doesn’t work in rock.
Generally AZ-NMCTA members feel pole attachment fees and processes are working well with
FCC regulation of fees for some utilities and agreements in place with electric cooperatives.
However, when there are multiple entrants, the lack of a central registry of pole use and capacity
even within the owning entity makes it difficult to ascertain the underlying pole potential and
clear path to plan for and authorize use. In pole management for late attachers, federal control
preempts the State. For historic pole lines to undeveloped/underdeveloped areas, there is
somewhat of a wildcat mentality and history of use.
There is a great need to streamline process(es) for different agencies and applications, perhaps by
means of overriding legislation and/or a clearinghouse. The pending Arizona Broadband
Development Council (ABDC) and interest from the Governor’s Office were discussed at
gateways to greater telecom provider engagement and drivers for removal/reduction of barriers
going forward.
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Appendix A - ASET EIID Project Interviews
Arizona Wireless Association (AZWA)
The Arizona Wireless Association (AZWA - http://azwa.org/) seeks to cultivate relationships
within the wireless industry and with Arizona’s cities and towns and to create a unified voice that
supports the development of quality wireless networks, the enhancement of the communities we
serve, and a spirit of charitable giving.
AZWA Contacts:
Lisa Johnson, Area Director of Property - West, Crown Castle and President of AZWA, Office:
480-735-6915, E-Mail: [email protected] & [email protected]
Karla Richards, Vice President of AZWA, E-Mail: [email protected]
John Stevens, Sales Development Manager West Region, Mobilitie Telecommunications
Infrastructure and Treasurer, AZWA, Office: 602-314-0379, E-Mail: [email protected]
Matthew Dostal, National Business Development Manager, Telecom Division, CALTROP
Corporation, Regulatory Affairs for AZWA, and ATIC Board Member, Office: 480-241-6363,
E-Mail: [email protected]
AZWA Interview:
Mike Keeling and Mark Goldstein of Data Site Consortium, Inc. initially attended an AZWA
membership mixer and introduced this project on March 1, 2011. Mike Golden of ASET
(formerly GITA) along with Mike Keeling and Mark Goldstein of Data Site Consortium, Inc.
subsequently worked with AZWA to schedule an collaborative session with AZWA leadership
and membership at a special meeting attended by some two dozen individuals on April 14, 2011.
During the meeting, attendees discussed the role of the AZWA and its members regarding
horizontal and vertical rights-of-way (“ROW”) role, issues, and opportunities.
Mike Keeling of Data Site Consortium, Inc. first gave an overview of the State’s NTIA grant for
broadband assessment and planning, the launch of the Arizona broadband map, and this policy
project, then a presentation titled “Right-of-Way as Essential Infrastructure for Statewide
Information Delivery” to the assembled AZWA members, followed by an open discussion.
AZWA members indicated that middle mile fiber backhaul was becoming increasingly important
as microwave links became insufficient for burgeoning mobile data traffic. Thus, they welcomed
ASET’s efforts in reducing/eliminating barriers to greater middle mile fiber deployment and
were quite receptive to the “two highways for the price of one” concept and potential.
FCC Order 224 gives equal footing for wireless as regards pole attachment. Since the ACC has
not filed for “State Pole Attachment Certification” with the FCC, Category 1investor owned
poles remain under FCC purview, unlike coop and municipally owned poles. The wireless
industry is quite interested in operating Distributed Antenna Systems (DAS) from power poles,
among other existing vertical assets. The FCC order enables top of pole use which is quite
important. Focus is on 12 KV and down distribution poles with 69 KV remaining business as
ASET Essential Infrastructure for Information Delivery Appendices Page 20
usual and not affected by the order. The Distributed Antenna System (DAS) Forum
(http://www.thedasforum.org/) is developing a set of standards that should help.
Six states have enacted some form of “colocation by rights” legislation and something similar
should be considered here. Also, AZWA would welcome various potential forms of State
preemption of local authority in permitting and regulation, as well as with the establishment of
model sets of standards (i.e. - Connecticut, New Jersey). Such standards should have a
republishing cycle to account for technology half-life and layer on states’ cooperation for de
facto national standards.
The California Public Utilities Commission (CPUC) adopted General Order 170 in December
2010 revamping its rules under the California Environmental Quality Act (CEQA ), which
requires public agencies to identify the significant environmental effects of their actions and to
provide alternatives to reduce those environmental effects. It is expected to substantially improve
the process for telecom carriers to obtain environmental review when they deploy new facilities
in California and level the playing field for all telecommunications utilities, especially CLECs.
Dictates uniformity that’s technology neutral and deals with setback restraints that remove
vertical assets from use.
Municipal public works generally trumps home owner associations (HOA) in permitting and
oversight. The FCC precedent for overriding HOA/community rules on residential satellite dish
placement man not carry over to commercial domains, though renewable energy interests could
drive. There is a strong presumption of CLECs being utilities for purposes of ROW use, but
where to drive State regulation and legislation from? In California, Davis-Sterling Act overrides
HOA rights in their bylaws, CCRs, etc.
Municipalities may limit above ground equipment placement in an attempt to favor underground
placement, but often proving impractical (Scottsdale example). A decision in California against
Huntington Beach provides a potentially useful precedent.
There are significant fiber placement enforcement issues. A discussion of encroachment permits
followed. Microtrenching in gutters is least intrusive and directional boring aids.
It could be useful to have documented evidence of broadband availability driving rural economic
development. Tangible models and proof may help shift sentiment regarding reducing/removing
deployment barriers.
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Appendix A - CenturyLink Project Interviews
CenturyLink (Formerly Qwest Communications)
CenturyLink (http://www.centurylink.com/) acquired the former Qwest Communications and is
now Arizona’s primary Incumbent Local Exchange Carrier (ILEC) in metropolitan and some
rural areas. CenturyLink is the third largest telecommunications company in the U.S. and
provides broadband, voice, and wireless services to consumers and businesses across the country
as well as advanced entertainment services under the CenturyLink Prism TV and DIRECTV
brands. In addition, the company provides data, voice and managed services to business,
government and wholesale customers in local, national and select international markets through
its high-quality advanced fiber optic network and multiple data centers. As part of the merger
with Qwest Communications, CenturyLink committed to the ACC to invest $75 million in rural
broadband infrastructure in Arizona.
CenturyLink Contacts:
George Favela, Director of State and Local Government Affairs, Office: 520-670-2422, E-Mail:
Michael DiMaria, Director of State Legislative Affairs, Office: 602-630-5179, E-Mail:
Wendell Nelson, Manager Engineering & Construction, Network Services, Office: 520-292-
7555, E-Mail: [email protected]
CenturyLink Interview:
Mike Golden of ASET (formerly GITA) along with Mike Keeling and Mark Goldstein of Data
Site Consortium, Inc. conducted an interview with CenturyLink personnel on September 12,
2011. During the meeting, parties discussed the role of the CenturyLink, as well as horizontal
and vertical rights-of-way (“ROW”) role, issues, and opportunities.
Century Link’s (CL) concerns and opportunities regarding regulation of public and private rights
of way (PROW/ROW):
Longitudinal ROW
o Forest Service, ASLD, ADOT, county, community issues
ASLD especially problematic to deal with
ADOT doesn’t allow inside roadway fiber deployment which would be
more cost effective
ADOT requires removal of abandoned cable at their discretion
o Cell tower feeds
Time to market
Re-setting ASLD ROWs/licenses
10x higher pricing if replacing
o copper with fiber
o fiber with more fiber
ASET Essential Infrastructure for Information Delivery Appendices Page 22
o Desire cost-based fees, not %-revenue-based fees
Vertical ROW
o Not substantial concern of in metro
o CL’s customers generally
Impact of Section 224 of the 1996 Telecommunications Act on CL’s Operations:
How Section 224 impacts CL’s operations
o CL sits on both sides of the issue
Operates as ILEC west of Mississippi River
Operates as CLEC east of Mississippi River
o Some desire for local vs. federal adjudication of issues
o City of Mesa program for limited street refurbishing with good cooperation may
be example for other cities to follow
Scope of PROW that CL desires Arizona public-entities make available for telecommunications
purposes:
State land
o Middle mile runs
o Enabling loop topologies
Municipal PROW
o Process issues (See below)
o Focus on streets and permitting restrictions
o No set-back issues or other issues primarily associated with cell towers
o Some areas just have no good location availability
o Timeframes problematic under contractual deadlines
PROW in rural areas
o Process issues—see below
Non-public resources
o Not of great concern
Other ROW, e.g., railroads
o Not of great concern
So many touch points. Simplify!
Restrictive regulation on use of PROW/ROW that CL would like to see modified:
Federal laws and rules
o No substantial inputs from CL re federal laws and rules
o CL interest in FCC/ABC —unserved broadband areas
Arizona State laws and rules
o ASLD
Major concern over aggressive pricing behaviors
Terminating existing 50 year ROWs/easements
Replacing with 10 year ROWs/easements
ASET Essential Infrastructure for Information Delivery Appendices Page 23
Replacement costs ranging upwards of 10x prior costs
o ADOT
Overly strict roadway-rules resulting in delayed permitting
Insufficient permitting personnel—need to pay salaries of additional
persons dedicated to issuing CL requested permits
Use of expediters
Bundled permits
No/little notice for relocations of existing plant
Transparency legislation (HB2513?)
ADOT ROW fee increases with relocations (reference I17 and 303
relocations)
CenturyLink would be interested in “two highways for the price of one”
conduit availability if, and only if, good separation of dedicated fiber from
other providers and security assured.
Issues of control, liability, and regulation
o ADOA
Procurement processes eliminate possible optimized proposals
SPOE proposal scoring detrimental to out of the box thinking
o Local government ordinances
Time to market issues
Permitting processes
Moratoriums on street digs
Cost issues
Excess fees
Insufficient permitting personnel. Need to pay salaries of
additional persons dedicated to issuing CL requested permits.
Opportunity to restructure certain fees within the context of on-going
“model city tax code” discussions
No/little notice for relocations of existing plant
ASET Essential Infrastructure for Information Delivery Appendices Page 24
Appendix A - ASET EIID Project Interviews
Salt River Project (SRP)
Salt River Project (SRP - http://www.srpnet.com/) consists of two entities: the Salt River Project
Agricultural Improvement and Power District, a political subdivision of the state of Arizona, and
the Salt River Valley Water Users' Association, a private corporation. The Power District
provides electricity to nearly 934,000 retail customers in the Phoenix area and operates or
participates in 11 major power plants and numerous other generating stations, including thermal,
nuclear, natural gas, and hydroelectric sources.
SRP Telecom (http://www.srpnet.com/telecom/) is a carrier-neutral provider of
telecommunications infrastructure products and services to Wireline and Wireless carriers alike,
as well as to enterprise customers with fiber optic and cell site assets concentrated in the Phoenix
metropolitan area, providing ready access and solutions to the unique network challenges of the
expansive Phoenix marketplace. Some fiber assets extend to the East of Phoenix serving the
Eastern Mining District in the Globe-Miami-Superior area.
SRP Contacts:
Michael Sherman, Director of Telecom Services, Office: 602-236-5806, E-Mail:
Jeff Taylor, Telecom Wireline Manager, Office: 602-236-5807, E-Mail: [email protected]
Angela Castellano, Telecom Project Manager, Office: 602-236-2856, E-Mail:
[email protected] (No longer with SRP)
Jennifer Marceau, Contract Services Manager, Office: 602-236-8663, E-Mail:
SRP Interview:
Mike Golden of ASET (formerly GITA) along with Mike Keeling and Mark Goldstein of Data
Site Consortium, Inc. conducted an interview with SRP personnel on August 2, 2011. During the
meeting, parties discussed the role of the SRP, as well as horizontal and vertical rights-of-way
(“ROW”) role, issues, and opportunities.
SRP Telecom considers all fiber deployment and wireless colocation asset builds more on a
potential revenue basis than as a cost issue, and seeks to aggregate demand for a quicker ROI.
Unlike pure commercial telecom providers, SRP’s investment ROI can and often does include
consideration of community benefits, the value of joint projects, and positioning telecom assets
as catalysts.
Fiber use across SRP’s network is leased to both wireline and wireless carriers, as well as to a
limited number of large enterprise customers. SRP’s wireless site assets are fiber fed, usually
through aerial fiber deployment carried with the 69 KV transmission system or fiber laterals
where appropriate. Distributed DAS is deemed practical on owned transmission towers.
ASET Essential Infrastructure for Information Delivery Appendices Page 25
However, long haul high voltage distribution infrastructure is shared with other electric utilities
and hard to utilize for fiber deployment or wireless transmitter attachment.
SRP rarely deploys empty conduit as it would rather fill with fiber and lease fiber access as a
prime service offering. However, SRP does add conduit to new business parks that it is involved
in constructing electrical distribution for, such as the Cotton Center in Phoenix, and later add
fiber as needed to serve a growing customer base. Generally, SRP operates as a carrier’s carrier
under Master Fiber Lease Agreements including Service Level Agreements (SLA). The Product
Order Process yields an initial quote +/- 30%. Non-Recurring Engineering (NRE) and recurring
costs are quoted on a case by case basis for terms varying from month-to-month all the way to 20
year lease agreements. SRP experiences about a 10:1 ration of quotes provided to closes
business.
In regard to pole attachments, SRP is exempt from Section 224 of the 1996 Telecommunications
Act as are railroads. However, SRP tends to voluntarily comply with pricing to the federal
schedule, but internal analysis indicates that may be underpriced on the basis of cost and value.
New FCC pole attachment rules for wireless assets may affect macrosite strategy.
SRP manages the Phoenix-area canal system for the Bureau of Reclamation, but generally does
not use these pathways for buried fiber, rather going aerial at much lower cost. It does enable
commercial providers to cross canal pathways on a case-by-case basis.
Communication towers are built out at some 260 sites and use of them leased as turnkey cell
sites mostly at existing electrical infrastructure locations such as power substations. Pricing is
based on industry comps and fiber backhaul offered as an add on service where carriers desire.
ASET Essential Infrastructure for Information Delivery Appendices Page 26
SRP Phoenix Area Fiber Map
ASET Essential Infrastructure for Information Delivery Appendices Page 27
SRP Phoenix Area Wireless Colocation Sites
ASET Essential Infrastructure for Information Delivery Appendices Page 28
Appendix A - ASET EIID Project Interviews
Union Pacific Railroad
Union Pacific Corporation (NYSE:UNP (http://www.up.com/) is one of America's leading
transportation companies. Its principal operating company, Union Pacific Railroad (UPR), is
North America's premier railroad franchise, covering 23 states across the western two-thirds of
the United States.
Union Pacific Railroad Contacts:
Mike Wallman, UPR Property Management, Office: 402-544-0577, E-Mail: [email protected]
David Elliot-Meisel, Project Director UPRR, SBA Site Management, Office: 402-657-4250, E-
Mail: [email protected]
Union Pacific Railroad Interview:
Mike Keeling and Mark Goldstein of Data Site Consortium, Inc. conducted a phone interview
with Mike Wallman, a representative of the Union Pacific Railroad, on June 29, 2011. During
the meeting, parties discussed the role of the Union Pacific Railroad, as well as horizontal and
vertical rights-of-way (“ROW”) role, issues, and opportunities.
Union Pacific Railroad total portfolio of ROW in Arizona:
Sunset Route through Arizona
Abandoned routes
Other ROW sites/routes
Master agreement/NDAs in existence:
Fees negotiated individually
Multiple fiber agreements exists
Multiple wireless
o Union Pacific Railroad vertical assets
Well developed program and offerings for carriers to utilize
17 vertical assets available in Arizona per table and map below
o 3rd party vertical assets
300 co-location agreements (total UPR system)
Underlying fee simple landowner issues:
o Rights granted by US Government (federal land grants) include all
telecommunications rights
o Native American Lands require additional negotiations
Telecommunications companies may need to negotiate with tribal entities
directly/indirectly for a side agreement
ASET Essential Infrastructure for Information Delivery Appendices Page 29
Abandoned line Opportunities
o ROWs are typically reserved during the abandonment process
Negotiating processes
o Details available
Crossing Agreements (< 2000 feet) are handled by UPR Real Estate Department
o Fees - one-time fee that is standard
SBA Site Management subsidiary of UPR markets and manages wireless tower leased use:
David Elliot-Meisel, Project Director UPRR, SBA Site Management
SBA Site Management funds several ROW resources and will build new tower assets on
a business case basis as needed
Federal Regulations:
100% coverage of passenger track miles must be served by Positive Train Control (PTC)
communications capabilities by 2012
o Requires new set of towers now being constructed
Along-track towers are 30 feet tall typically
Repeater towers are 100-120 feet tall typically
o See http://en.wikipedia.org/wiki/Positive_train_control
Federal exemption
o UPR has and uses its federal exemption from state and local zoning/permitting
processes
Union Pacific Railroad Company Vertical Assets in Arizona
City St Lat Long
Structure
Height
Ground
AMSL
Total
AMSL
Facility Type (SSS = Steel Self Support,
SG = Steel Guyed, WP = Wood Pole, WS
= Wood Structure)
Bowie (MIC) AZ 321943 1092910 50 3760 3760 SSS
Casa Grande (MIC) AZ 325233 1114519 80 1390 1465 SSS
Gila Bend (MIC) AZ 325646 1124250 80 735 815 SSS
Heliograph Peak (MIC) AZ 323857 1095055 150 10002 10152 SSS
Midway Wells (MIC) AZ 324236 1140733 400 115 515 SG
Mount Lemmon (MIC) AZ 322623 1104704 125 9050 9175 SSS
Oatman Mtn. (MIC) AZ 330306 1130803 100 1690 1790 SG
Phoenix (MIC) AZ 332640 1120404 100 1080 1180 SSS
Pinal Peak (MIC) AZ 331649 1104910 100 7720 7820 SG
Telegraph Pass (MIC) AZ 324013 1142005 80 1590 1670 SSS
Tucson (MIC) AZ 321324 1105759 45 2384 2429 Bldg
Tucson Yard Office AZ 325235 1104520 100 425 525 SSS
Wellton (MIC) AZ 324011 1140815 40 255 295 WP
White Tank Mtn. (MIC) AZ 333431 1123441 80 4040 4120 SSS
Willcox (MIC) AZ 321505 1094951 50 4167 4217 SSS
Yuma (MIC) AZ 324322 1143654 60 130 190 SSS
Yuma East Yard (MIC) AZ 324056 1143415 70 35 105 SSS
ASET Essential Infrastructure for Information Delivery Appendices Page 30
Union Pacific Railroad Company Vertical Assets in Arizona
ASET Essential Infrastructure for Information Delivery Appendices Page 31
Appendix A - ASET EIID Project Interviews
BNSF Railway
The BNSF Railway (http://www.bnsf.com/) operates one of the largest railroad networks in
North America covering the western two-thirds of the United States, the product of nearly 400
different railroad lines that merged or were acquired over the course of 160 years. BNSF
Railway plays a vital role in the U.S. economy, hauling the products consumers use every day
and the raw materials manufacturers need to make those products.
BNSF Railway Contact:
Susan Odom, Manager Network Studies, Office: 817-352-6432, E-Mail: [email protected]
BNSF Railway Interview:
Mike Keeling and Mark Goldstein of Data Site Consortium, Inc. conducted a phone interview
with Susan Odom, a representative of the BNSF Railway, on August 19, 2011. During the
meeting, parties discussed BNSF’s current third party ROW initiatives, as well as horizontal and
vertical rights-of-way (“ROW”) role, issues, and opportunities.
Underlying landowner issues:
BNSF has land grants from underlying land owners (fee absolute owners), including
o Pre-1871 land grants
Generally are fee simple
Give BNSF full rights to contractually delegate ROW to third parties
o Post-1871 land grants
Generally are limited to BNSF railroad purposes
Reversionary, meaning that if BNSF contractually delegates ROW to third
parties, such delegations are subject to liability for exceeding-scope-of-use
claims by the underlying land owners
Underlying landowners include:
Federal entities
Native American entities
State governments
Local governments
Private owners
Scope of third party activities of the BNSF ROW Group:
Longitudinal ROW
o Long runs
BNSF long-run ROW processes are early-stage, requiring individual
assessments for defining the underlying title restraints, which impact its
ability to contractually delegate ROW to third parties.
Arizona route map provided and has been included below
ASET Essential Infrastructure for Information Delivery Appendices Page 32
Route abandonment records are in place for abandonments after 1995
o Short runs - Crossings
DNSF crossing (transverse) ROW permitting processes are mature,
relatively standardized, requiring an initial fee and typically annual fees,
delegated to a BNSF business partner
Vertical ROW
o BNSF
Has approximately 900 co-location communications towers, of which 37
are located in AZ
Has a process by which it identifies fee simple assets on which it can
locate communications towers
Is open to expanding the number of co-location towers in AZ
Is open to expanding longitudinal fiber to its existing co-location towers
(most now are microwave fed)
Is open to shared cost arrangements for the tower/fiber feed expansions
o Is limited by
Underlying fee arrangements
Local zoning rules
Potential BNSF ROW initiatives:
Co-funding common fiber builds
o Leasing dark fiber
o Indefeasible Right to Use (IRU)
o Will take dark fiber rights as part of deal
Possible cross jurisdictional rights exchanges
o Any fiber along ROW enhances control
o Supports expanding network of microwave for backhaul
BNSF will entertain new business models
Federal rules impacting ROW decisions:
Positive Train Control (PTC) wireless deployment required in near future
o Will drive new tower deals. Locations needed to be identified.
o Larger tower sites for colocation opportunities
o See http://en.wikipedia.org/wiki/Positive_train_control
Railroad operational issues:
Service and safety are primary
ASET Essential Infrastructure for Information Delivery Appendices Page 33
ASET Essential Infrastructure for Information Delivery Appendices Page 34
Appendix B - ASET EIID Resources & References
Index of Resources & References
Federal Government Agencies
State of Arizona Government Agencies
National Non-Profit Organizations and Trade Associations
Arizona Non-Profit Organizations and Trade Associations
ASET Essential Infrastructure for Information Delivery Appendices Page 35
Appendix B - ASET EIID Resources & References
Federal Government Agencies:
White House - http://www.whitehouse.gov/
Technology Issues - http://www.whitehouse.gov/issues/technology
21st Century Digital Infrastructure -
http://www.whitehouse.gov/issues/technology#id-4
Federal Communications Commission (FCC) - http://www.fcc.gov/
The FCC regulates interstate and international communications by radio, television, wire,
satellite and cable in all 50 states, the District of Columbia and U.S. territories. It was
established by the Communications Act of 1934 and operates as an independent U.S.
government agency overseen by Congress.
Legacy FCC Site - http://transition.fcc.gov/
National Broadband Plan - http://www.fcc.gov/topic/national-broadband-plan
Broadband USA - http://www.broadbandusa.gov/
Broadband.gov Plan Site - http://www.broadband.gov/plan/
Chapter 6: Infrastructure -
http://www.broadband.gov/plan/6-infrastructure/
Connecting America Fund - http://www.fcc.gov/encyclopedia/connecting-america
National Broadband Map - http://broadbandmap.gov/
Consumer Broadband Test (Beta) - http://www.broadband.gov/qualitytest/about/
Wireline Competition Bureau - http://www.fcc.gov/wireline-competition-bureau
Broadband Acceleration Initiative -
http://www.fcc.gov/encyclopedia/broadband-acceleration
Wireless Telecommunications Bureau (WTB) - http://wireless.fcc.gov/
Tower Overview - http://www.fcc.gov/topic/tower
Tower and Antenna Siting Issues - http://wireless.fcc.gov/siting/
Antenna Structure Registration (ARS) Search -
http://wireless2.fcc.gov/UlsApp/AsrSearch/asrRegistrationSearch.jsp
Broadband Opportunities for Rural America -
http://wireless.fcc.gov/outreach/index.htm?job=broadband_home
Spectrum Dashboard - http://reboot.fcc.gov/reform/systems/spectrum-dashboard
ASET Essential Infrastructure for Information Delivery Appendices Page 36
U.S. Department of Commerce (DOC) - http://www.commerce.gov/
The U.S. Department of Commerce promotes job creation, economic growth, sustainable
development and improved standards of living for all Americans by working in
partnership with businesses, universities, communities and our nation’s workers. The
department touches the daily lives of the American people in many ways, with a wide
range of responsibilities in the areas of trade, economic development, technology,
entrepreneurship and business development, environmental stewardship, and statistical
research and analysis.
National Telecommunications and Information Administration (NTIA) -
http://www.ntia.doc.gov/
NTIA is the Executive Branch agency that is principally responsible for advising
the President on telecommunications and information policy issues. NTIA’s
programs and policymaking focus largely on expanding broadband Internet access
and adoption in America, expanding the use of spectrum by all users, and
ensuring that the Internet remains an engine for continued innovation and
economic growth.
Broadband - http://www.ntia.doc.gov/category/broadband
Recovery Act Broadband Programs - http://www2.ntia.doc.gov/
Digital Literacy Initiative - http://digitalliteracy.gov/
National Broadband Map - http://www.broadbandmap.gov/
Broadband Adoption Research - http://www.ntia.doc.gov/data
Broadband Grants - http://www.ntia.doc.gov/grants-combined
Broadband Technology Opportunities Program (BTOP) - http://www.ntia.doc.gov/category/broadband-technology-opportunities-program
State Broadband Initiative (SBI) - http://www2.ntia.doc.gov/SBDD
Arizona Projects - http://www2.ntia.doc.gov/arizona
National Broadband Map Datasets -
http://www2.ntia.doc.gov/broadband-data
U.S. Department of Agriculture (USDA) - http://www.usda.gov/
Rural Utilities Service (RUS) - http://www.rurdev.usda.gov/Utilities_LP.html
Rural Development Loan Assistance -
http://www.rurdev.usda.gov/RD_Loans.html
Farm Bill Broadband Program -
http://www.rurdev.usda.gov/utp_farmbill.html
ASET Essential Infrastructure for Information Delivery Appendices Page 37
Rural Development Grant Assistance -
http://www.rurdev.usda.gov/RD_Grants.html
Community Connect -
http://www.rurdev.usda.gov/utp_commconnect.html
Distance Learning and Telemedicine Program (DLT) -
http://www.rurdev.usda.gov/UTP_DLT.html
U.S. Department of Transportation (DOT) - http://www.dot.gov/
Federal Highway Administration (FHWA) - http://www.fhwa.dot.gov/
Office of Infrastructure - http://www.fhwa.dot.gov/infrastructure/
Intelligent Transportation Systems (ITS) Library -
http://www.its.dot.gov/library.htm
Rural Interstate Corridor Communications Study -
http://ops.fhwa.dot.gov/int_its_deployment/rural/congrpt0807/03potben.htm
Universal Service Administrative Company (USAC) - http://www.usac.org/
Schools and Libraries Program - http://www.usac.org/sl/
ASET Essential Infrastructure for Information Delivery Appendices Page 38
Appendix B - ASET EIID Resources & References
State of Arizona Government Agencies:
Arizona Governor’s Office - http://www.azgovernor.gov/
Arizona.gov Official Web Site - http://az.gov/
Arizona Travel Guide - http://www.arizonaguide.com/
Arizona State Legislature - http://www.azleg.gov/
Arizona State Senate - http://www.azsenate.gov/
Arizona House of Representatives - http://www.azhouse.gov/
Arizona Department of Administration - http://www.azdoa.gov/
Arizona Strategic Enterprise Technology (ASET) Office - http://isd.azdoa.gov/
Arizona Broadband Project - http://azbroadband.gov/
Arizona Broadband Map - http://broadbandmap.az.gov/map/
Arizona Broadband Development Council (ABDC) -
http://azbroadband.gov/ABDC/About_ABDC.html
Task Groups - http://azbroadband.gov/ABDC/Task_Groups/default.html
Former Government Information Technology Agency (GITA) -
http://www.azgita.gov/
Telecom - http://www.azgita.gov/telecom/
Arizona GIS Broadband Survey Report (1/09) -
http://www.azgita.gov/telecom/AZ%20GITA%20Broadband%20Assessm
ent%20GIS%20Study%20Jan2009.pdf
Virtual Government Technology Center (VGTC) -
http://isd.azdoa.gov/sections/supply/itil/vgtc.aspx
Telecommunications Program Office (TPO) - http://www.tpo.az.gov/
ASET Essential Infrastructure for Information Delivery Appendices Page 39
Arizona Department of Transportation (ADOT) - http://www.azdot.gov/
Geographic Information Systems for Transportation (GIS-T) Section -
http://www.azdot.gov/mpd/gis/index.asp
GIS-T Projects - http://www.azdot.gov/mpd/gis/projects/index.asp
ADOT Maps - http://www.azdot.gov/mpd/gis/maps/index.asp
Arizona State Highway System - http://www.azdot.gov/mpd/gis/maps/pdf/shs.pdf
ADOT Engineering and Maintenance Districts -
http://www.azdot.gov/mpd/gis/maps/pdf/eng_maint_dist_mp.pdf
Report TRQS-02 - Arizona I-19 Wi-Fi Corridor: Assessment of Opportunities for Probe
Data Operations (10/05) -
http://www.azdot.gov/TPD/ATRC/publications/QuickStudies/PDF/TRQS-02.pdf
Report TRQS-03 - Arizona I-19 WiFi Corridor: Concept Demonstration of Probe Vehicle
Tracking (3/07) -
http://www.azdot.gov/TPD/ATRC/publications/QuickStudies/PDF/TRQS-03.pdf
Arizona State Land Department (ASLD) - http://www.land.state.az.us/
ASLD’s mission is to manage State Trust lands and resources to enhance value and
optimize economic return for the Trust beneficiaries, consistent with sound stewardship,
conservation, and business management principles supporting socioeconomic goals for
citizens here today and generations to come, as well as to manage and provide support for
resource conservation programs for the well-being of the public and the State's natural
environment.
Real Estate Division - http://www.land.state.az.us/divisions/realestate.htm
Sales & Commercial Leasing Section -
http://www.land.state.az.us/programs/realestate/sections/sales.htm
Commercial Leasing Section -
http://www.land.state.az.us/programs/realestate/sections/comml_leasing.htm
Right of Way Section -
http://www.land.state.az.us/programs/realestate/sections/row.htm
Information Systems & Resource Analysis Division -
http://www.land.state.az.us/divisions/infoSystems.htm
Arizona Land Resource Information System (ALRIS) -
http://www.land.state.az.us/alris/index.html
ALRIS GIS Data - http://www.land.state.az.us/alris/layers.html
Arizona State Cartographer's Office (SCO) - http://sco.az.gov/
Arizona Geographic Information Council (AGIC) - http://www.agic.az.gov/
ASET Essential Infrastructure for Information Delivery Appendices Page 40
Telecommunications Site Rental Schedule for 2010 -
http://www.land.state.az.us/news/2009/103009_news.htm
Arizona Corporation Commission (ACC) - http://www.azcc.gov/
The Arizona Corporation Commission (ACC - http://www.azcc.gov/) is established via
Article 15 of the Arizona Constitution with elected Commissioners. The ACC has
responsibilities that go beyond traditional public utilities regulation including regulation
of telephone services, facilitating the incorporation of businesses and organizations,
securities regulation, and railroad/pipeline safety. By virtue of the Arizona Constitution,
the Commissioners function in an Executive capacity, they adopt rules and regulations
thereby functioning in a Legislative capacity, and they also act in a Judicial capacity
sitting as a tribunal and making decisions in contested matters.
Utilities Division - http://www.azcc.gov/Divisions/Utilities/
Telephone - http://www.azcc.gov/divisions/utilities/telecom.asp
Telecommunications Industry Page -
http://www.azcc.gov/divisions/utilities/telecom/industry.asp
Arizona Universal Service Fund (AUSF) -
http://www.azcc.gov/divisions/utilities/telecom/ausf-faqs.asp
Telecommunications Rules -
http://www.azsos.gov/public_services/Title_14/14-02.htm#ARTICLE_5
Arizona Commerce Authority - http://www.azcommerce.com/
Community Profiles -
http://www.azcommerce.com/facts-and-figures/community-profiles.aspx
Maps & GIS Data - http://www.azcommerce.com/facts-and-figures/maps.aspx
Arizona Broadband Initiative Framework Analysis and Report (4/07) - http://www.azcommerce.com/assets/pdfs/publications-and-reports/arizona-broadband-initiative-framework.pdf
Arizona Department of Education - http://www.azed.gov/
Educational Technology Group - http://www.azed.gov/educational-technology/
E-Rate - http://www.azed.gov/educational-technology/e-rate/
Multimedia Resource Links - http://www.azed.gov/educational-technology/2011/09/14/multimedia-resource-links/
Information Technology - http://www.azed.gov/information-technology/
ASET Essential Infrastructure for Information Delivery Appendices Page 41
Appendix B - ASET EIID Resources & References
National Non-Profit Organizations and Trade Associations:
National Governors Association (NGA) - http://www.nga.org/cms/home.html
NGA is the bipartisan organization of the nation's governors that promotes visionary state
leadership, shares best practices, and speaks with a collective voice on national policy.
Communications Key Issue - http://www.nga.org/cms/home/federal-relations/nga-key-
committee-issues/page-edc-issues/col2-content/main-content-list/communications.html
State Priorities in Communications Policy Position -
http://www.nga.org/cms/home/federal-relations/nga-policy-positions/page-edc-
policies/col2-content/main-content-list/state-priorities-in-communicatio.html
National Conference of State Legislatures (NCSL) - http://www.ncsl.org/
NCSL is a bipartisan organization that serves the legislators and staffs of the nation's 50
states, its commonwealths and territories providing research, technical assistance, and
opportunities for policymakers to exchange ideas on the most pressing state issues. NCSL
is an effective and respected advocate for the interests of state governments before
Congress and federal agencies.
Telecommunications and Information Technology Issue -
http://www.ncsl.org/Default.aspx?TabID=756&tabs=951,71,531#951
Telecommunications Technology and Regulation -
http://www.ncsl.org/Default.aspx?TabID=756&tabs=951,71,540#540
Broadband Statutes - http://www.ncsl.org/default.aspx?tabid=13455
2010 Enacted Broadband Legislation -
http://www.ncsl.org/default.aspx?tabid=21125
Transforming Health Care Through Technology: NCSL Partners Project -
http://www.ncsl.org/default.aspx?tabid=22228
National Association of Regulatory Utility Commissioners (NARUC) -
http://www.naruc.org/
NARUC is the national association representing the State Public Service Commissioners
who regulate essential utility services, including energy, telecommunications, and water.
NARUC members are responsible for assuring reliable utility service at fair, just, and
reasonable rates. Founded in 1889, the Association is an invaluable resource for its
members and the regulatory community, providing a venue to set and influence public
policy, share best practices, and foster innovative solutions to improve regulation.
Committee on Telecommunications - http://www.naruc.org/committees.cfm?c=53
ASET Essential Infrastructure for Information Delivery Appendices Page 42
Ad Hoc Committee on National Wireless Consumer Protection Standards -
http://www.naruc.org/committees.cfm?c=59
Staff Subcommittee on State Universal Service Fund Administrators -
http://www.naruc.org/committees.cfm?c=27
Staff Subcommittee on Telecommunications -
http://www.naruc.org/committees.cfm?c=26
National Regulatory Research Institute (NRRI) - http://www.nrri.org/
National Inventory of Broadband Projects and Programs -
http://communities.nrri.org/web/telecom-broadband-adoption/706-project-home
Fundamentals of Telecommunications Regulation: Markets, Jurisdiction, and
Challenges (1/11) - http://www.nrri.org/pubs/telecommunications/NRRI_telecomm_overview_jan11-03.pdf
National League of Cities (NLC) - http://www.nlc.org/
NLC is dedicated to helping city leaders build better communities. Working in
partnership with the 49 state municipal leagues, NLC serves as a resource to and an
advocate for the more than 19,000 cities, villages and towns it represents.
Information Technology & Communications Committee - http://www.nlc.org/influence-federal-policy/policy-committees/information-technology-communications
National Association of Counties (NACo) -
http://www.naco.org/Pages/default.aspx
NACo is the only national organization representing county government. Driven by a
strong membership, NACo's Board of Directors represents counties across America.
Legislation & Policy - http://www.naco.org/legislation/Pages/default.aspx
Telecommunications & Technology Steering Committee -
http://www.naco.org/legislation/policies/Pages/TT.aspx
National Association of Telecommunications Officers and Advisors (NATOA)
-
http://www.natoa.org/
NATOA is the premier local government professional association that provides support
to members on the many local, state, and federal communications laws, administrative
rulings, judicial decisions, and technology issues impacting the interests of local
governments.
Policy/Advocacy - http://natoa.org/policy-advocacy/
Broadband - http://natoa.org/broadband/national-broadband-plan.html
ASET Essential Infrastructure for Information Delivery Appendices Page 43
Local Government Officials Principles Relating to Rights of Way (8/98) - http://www.natoa.org/documents/Local_Government_Principles_Relating_to_Rights-of-Way.pdf
Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical
Guidance (6/00) - http://www.natoa.org/documents/FCC_LSGAC_RF_Guide.pdf
NATOA Local Government Official’s e-Guide to Communications Facilities
Siting ($50 Members/$100 Non-Members) -
http://www.natoa.org/documents/FacilitiesSitingFlyerUpdated.pdf
National Association of State Chief Information Officers (NASCIO) -
http://www.nascio.org/
NASCIO’s mission is to foster government excellence through quality business practices,
information management, and technology policy.
State Connectivity and Broadband Working Group -
http://www.nascio.org/committees/broadband/
Bowling for Broadband 2: Toward Citizen-Centric, Broadband-Based E-
Government (8/06) - http://www.nascio.org/publications/documents/NASCIO-
Bowling_for_Broadband2.pdf
Bowling for Broadband: The Role of the State CIO in Promoting High-Speed
Internet Access (9/04) - http://www.nascio.org/publications/documents/NASCIO-
CIO_and_Broadband.pdf
Rural Telecommunications Congress (RTC) -
http://www.ruraltelecon.org/pages/
RTC is a national membership organization dedicated to assuring that rural areas in the
United States have access to the information and support they need to obtain and use
advanced telecommunications services and technology for social and economic
development.
Broadband Planning - http://www.ruraltelecon.org/pages/BroadbandPlanning.aspx
Community Toolkit -
http://www.ruraltelecon.org/pages/ruraltelecon10/RuralTeleCon11/Toolkit.aspx
Rural Telecommunications Group (RTG) - http://ruraltelecomgroup.org/
RTG is a trade association representing rural wireless carriers who provide wireless
telecommunications services, such as cellular telephone service and Personal
Communications Services, to regions with less than 100,000 subscribers comprising
secondary, tertiary, and rural markets. RTG membership is comprised of both
independent wireless carriers and wireless carriers that are affiliated with rural telephone
companies that have joined together to speed delivery of new, efficient, and innovative
telecommunications technologies to the populations of remote and underserved sections
of the country.
ASET Essential Infrastructure for Information Delivery Appendices Page 44
Advocacy - http://ruraltelecomgroup.org/advocacy/
RICA/RTG Fall Forum and RTG Annual Meeting 11/2/11 in Phoenix, AZ -
http://ruraltelecomgroup.org/types/events/
PCIA - The Wireless Infrastructure Association - http://www.pcia.com/
PCIA - The Wireless Infrastructure Association is the trade association representing the
companies that make up the wireless telecommunications infrastructure industry.
Members include the carriers, infrastructure providers and professional services firms
that own and manage more than 130,000 telecommunications facilities throughout the
world.
Advocacy -
http://www.pcia.com/index.php?option=com_content&view=article&id=30&Itemid=33
Federal - http://www.pcia.com/index.php?option=com_content&view=article&id=14&Itemid=34
State - http://www.pcia.com/index.php?option=com_content&view=article&id=15&Itemid=35
Local - http://www.pcia.com/index.php?option=com_content&view=article&id=16&Itemid=36
Model Ordinances - http://www.pcia.com/index.php?option=com_content&view=article&id=17&Itemid=37
Model Legislation - http://www.pcia.com/index.php?option=com_content&view=article&id=78&Itemid=159
References - http://www.pcia.com/index.php?option=com_content&view=article&id=18&Itemid=38
Distributed Antenna System (DAS) Forum - http://www.thedasforum.org/
AWS Clearinghouse - http://www.awsclearinghouse.com/
Frequency Coordination -
http://www.pcia.com/index.php?option=com_content&view=article&id=32&Itemid=10
CTIA - The Wireless Association - http://www.ctia.org/
CTIA - The Wireless Association is an international nonprofit membership organization
that represents the wireless communications industry. Membership includes wireless
carriers and their suppliers, as well as providers and manufacturers of wireless data
services and products.
Advocacy - http://www.ctia.org/advocacy/
Policy Topics - http://www.ctia.org/advocacy/policy_topics/
ASET Essential Infrastructure for Information Delivery Appendices Page 45
Broadband -
http://www.ctia.org/advocacy/policy_topics/topic.cfm/TID/37
Spectrum, Tower Siting & Antennas -
http://www.ctia.org/advocacy/policy_topics/topic.cfm/TID/65
Research - http://www.ctia.org/advocacy/research/
Legislative Search -
http://www.ctia.org/advocacy/research/index.cfm/AID/10586
American Planning Association (APA) - http://www.planning.org/
APA is an independent, not-for-profit educational organization that provides leadership
in the development of vital communities.
Technology Division - http://www.planning.org/divisions/tech/index.htm
Resources - http://www.planning.org/resources/
American Public Works Association (APWA) - http://www.apwa.net/
APWA serves professionals in all aspects of public works and acts as an effective voice
of public works throughout North America. APWA includes not only personnel from
local, county, state/province, and federal agencies, but also private sector personnel who
supply products and services to those professionals.
Advocacy - http://www.apwa.net/Topics/Advocacy
Utility and Public Right-of-Way -
http://www.apwa.net/Topics/Utility-and-Public-Right-of-Way
International Municipal Lawyers Association (IMLA) - http://www.imla.org/
IMLA is a non-profit, professional organization that has been an advocate and resource
for local government attorneys since 1935 and serves as an international clearinghouse of
legal information and cooperation on municipal legal matters.
Sections -
http://www.imla.org/index.php?option=com_content&task=view&id=82&Itemid=170
Including a Telecommunications & Franchise Section (no specific link)
APCO International (Public Safety Communications) -
http://www.psconnect.org/Home/
APCO International is the world's largest organization of public safety communications
professionals. It serves the needs of public safety communications practitioners
worldwide and the welfare of the general public as a whole by providing complete
expertise, professional development, technical assistance, advocacy, and outreach.
Resources - http://www.psconnect.org/Resources/AllLibraries/
ASET Essential Infrastructure for Information Delivery Appendices Page 46
Appendix B - ASET EIID Resources & References
Arizona Non-Profit Organizations and Trade Associations:
Arizona Telecommunications & Information Council (ATIC) -
http://arizonatele.com/atic/
ATIC ATIC) is an economic development foundation that functions as Arizona's
recognized and authoritative organization guiding technology policy development,
serving as a leading source of information and expertise on telecommunications and
information technology matters. ATIC develops, promotes and supports initiatives and
guides adoption of effective public policies that encourages wide-scale deployment and
availability of telecommunication services and information technologies to insure
economic prosperity for the Arizona community, expand the region's global competitive
advantage, enable continued educational advancement, and support an enhanced quality
of life.
Archived Arizona Telecom Directory (ATD) - http://www.arizonatele.com/
ATIC Calendar of Events - http://arizonatele.com/atic/calendar.php
ATIC Strategy Committee - http://arizonatele.com/atic/strategy/default.htm
Arizona Telecommunications & Information Institute (ATI Institute) -
http://aztii.org/
ATI Institute is dedicated to supporting and promoting initiatives in the area of advanced
telecommunications and information infrastructure that lead to effective deployment and
availability of innovative and state-of-the-art broadband services and information
technologies for the entire Arizona community.
Arizona New Mexico Cable Television Association (AZ-NMCTA) -
http://www.azcable.org/
AZ-NMCCA works closely with state and federal lawmakers to implement a positive
legislative program for the cable television industry. AZ-NMCCA has successfully
obtained state theft of service legislation, codified a state sales tax exemption, put a cap
on state license fees, and was instrumental in developing the 1984 & 1996 Federal Cable
Communications Acts. AZ-NMCCA offers guidance and assistance to cable television
systems in dealing with local government relations issues.
Arizona Wireless Association (AZWA) - http://azwa.org/
AZWA seeks to cultivate relationships within the wireless industry and with Arizona’s
cities and towns and to create a unified voice that supports the development of quality
wireless networks, the enhancement of the communities we serve, and a spirit of
charitable giving.
ASET Essential Infrastructure for Information Delivery Appendices Page 47
Arizona Association for Economic Development (AAED) -
http://www.aaed.com/
The League of Arizona Cities and Towns - http://www.azleague.org/
Member Cities and Towns -
http://www.azleague.org/index.cfm?fuseaction=about.cities
Legislative Issues -
http://www.azleague.org/index.cfm?fuseaction=legislative.main
Resources & Research -
http://www.azleague.org/index.cfm?fuseaction=resources.main
Arizona Investment Council (AIC) - http://www.arizonaic.org/
Arizona Technology Council (AZTC) - http://www.aztechcouncil.org/ TechConnect Magazine -
http://www.aztechcouncil.org/cwt/external/wcpages/initiatives/techconnect.aspx
Greater Arizona eLearning Association (GAZeL) - http://gazel.org/
Arizona Telemedicine Program (ATP) - http://www.telemedicine.arizona.edu/
Arizona BioIndustry Association - http://www.azbio.org/
Arizona Nanotechnology Cluster - http://www.aznano.org/
Science Foundation Arizona (SFAz) - http://www.sfaz.org/
CANAMEX Smart Corridors & CyberPort Projects http://www.canamex.org/
American Public Works Association (APWA) Arizona Chapter -
http://arizona.apwa.net/
Intelligent Transportation Society of Arizona (ITS AZ) - http://www.itsaz.org/
Arizona Section of Institute of Transportation Engineers (AZITE) -
http://azite.org/
Arizona Association of County Engineers (AACE) - http://www.azace.org/
American Council of Engineering Companies (ACEC) of Arizona -
http://www.acecaz.org/
ASET Essential Infrastructure for Information Delivery Appendices Page 48
Appendix C - Arizona Broadband
Conduit Deployment Act of 2012 Draft
AN ARIZONA LEGISLATIVE BILL
(2 Highways for the Price of One) To amend Chapter 20 of title 28, Arizona Revised Statutes, to direct the Director of the Arizona
Department of Transportation to require that broadband conduit be installed as part of certain
rural highway construction projects, and for other purposes.
Be it enacted by the Senate and House of Representatives of the Arizona Legislature in the
session assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the “Arizona Rural Broadband Conduit Deployment Act of 2012.”
Sec. 2 Chapter 20 of title 28, Arizona Revised Statutes, is amended by adding the following:
Sec. 28-xxxx. Broadband conduit installation; rural highway construction projects
A. The Director shall install broadband conduit in accordance with this section as part of any
covered rural highway construction project The Director shall ensure with respect to a covered
highway construction project that--
1. an appropriate number of broadband conduits each with an appropriate number of
preinstalled innerducts, as determined by the Director, are installed along the highway to
accommodate multiple broadband providers, with consideration given to the availability
of existing conduits;
2. the size of each conduit is consistent with industry best practices and is sufficient to
accommodate potential demand, as determined by the Director;
3. hand holes and manholes for fiber access and pulling cable for each conduit are placed
at intervals consistent with industry best practices, as determined by the Director; and
4. each project allocates sufficient off-highway space for vaults and re-generation
enclosures.
B. The Director shall establish standards to carry out the purposes of this section that consider
population density in the area of a covered rural highway construction project, the type of
highway involved in the project, and existing broadband access in the area of the project.
C. The Director shall ensure that each broadband conduit and/or innerduct installed pursuant to
this section includes a pull tape and is capable of supporting fiber optic cable placement
techniques consistent with industry best practices, as determined by the Director.
D. The Director shall ensure that each broadband conduit installed pursuant to this section is
placed at a depth consistent with industry best practices, as determined by the Director, and that,
in determining the depth of placement, consideration is given to the location of existing utilities
and the cable separation requirements of State and local electrical codes.
E. The Director shall ensure that any qualified requesting broadband provider as determined by
the ABIA, has access to each broadband conduit installed pursuant to this section, on a
competitively neutral and nondiscriminatory basis, for a charge not to exceed a cost-based rate.
F. The Director may waive the application of this section or any provision therein if the Director
determines such waiver appropriate with respect to a covered rural highway construction project.
G. In carrying out this section, the Director shall coordinate with the ABDC and ABIA as the
Director determines appropriate, including in making determinations with respect to potential
ASET Essential Infrastructure for Information Delivery Appendices Page 49
demand under subsection A, paragraph 2 of this section and existing broadband access in the
area of the covered highway construction project.
H. For the purposes of this section:
1. ‘broadband’ means an Internet Protocol-based transmission service that enables users
to send and receive voice, video, data, graphics, or a combination thereof.
2. ‘broadband conduit’ means a conduit for fiber optic cables that support broadband or,
where appropriate, wireless facilities for broadband service.
3. ‘covered highway construction project’ means a project to construct a new rural
highway or to construct an additional lane or shoulder for an existing rural highway that
is commenced after the effective date of this section and that receives funding from state
funds and/or from federal funds.
4. ‘rural highways’ means that portion of any highway in Arizona that is also outside the
municipal boundary of any Arizona city having a population of 20,000 or more persons,
or meets other criteria or definitions of “rural” as designated by the USDA, or by the
Arizona Broadband Infrastructure Coordination Office.
I. The Director, at the request of the Arizona ADIA, may determine that conduit can also be
installed without regard to the timing of a related existing construction project, but based on a
particular need for broadband infrastructure because of a broadband deficit situation, or an
overriding security or redundancy need, or because funding is available from the ABIA, or from
other sources.
ASET Essential Infrastructure for Information Delivery Appendices Page 50
Appendix D - Arizona Broadband Infrastructure Coordination
Office Draft
Section 1. Title 40, Arizona Revised Statutes, is amended by adding chapter 8, to read:
CHAPTER 8
ARIZONA BROADBAND INFRASTRUCTURE COORDINATION OFFICE
ARTICLE 1. GENERAL PROVISIONS
40-1401. Definitions
In this chapter, unless the context otherwise requires:
1. "ABICO" means the Arizona Broadband Infrastructure Coordination Office established by
this chapter.
2. "Board" means the board of directors of the ABICO.
3. "Broadband Infrastructure" means facilities and equipment, including cable, fiber, conduit,
ducts, poles, towers, cabinets, vaults, manholes, handholes and other associated equipment and
appurtenances and related rights-of-way that are used directly or indirectly in providing
broadband services, telecommunications, telecommunications services or other wire and wireless
communications.
4. "Broadband Infrastructure Project" means constructing, acquiring, providing, developing,
operating, maintaining, leasing or improving broadband infrastructure, broadband service or
technologies that constitute a part of, or are related to, broadband infrastructure or broadband
service, to provide for broadband service in unserved, underserved, and rural areas of this state.
5. "Broadband Provider" means private nonprofit entity or private investor owned entity that
provides broadband service in this state for a fee by any technology.
6. "Broadband Service" means providing access to the internet or to computer processing,
information storage or protocol conversion at a rate of at least one megabit per second in either
the upstream or downstream direction. Broadband service does not include any information
content or service applications provided over the access service or any intrastate service that was
subject to a tariff as of January 1, 2012.
7. "Constructing" or "construction" includes:
(a) preliminary planning to determine the economic and engineering feasibility of broadband
infrastructure projects.
(b) engineering, planning, legal, fiscal, and economic investigations and studies necessary to
broadband infrastructure projects.
(c) surveys, designs, plans, working drawings, specifications, procedures, and other actions
necessary to the construction of broadband infrastructure projects.
(d) erecting, building, acquiring, altering, remodeling, improving, interconnecting, or extending
broadband infrastructure.
(e) inspecting and supervising the construction of broadband infrastructure and all costs
incidental to acquiring and financing broadband infrastructure.
(f) any other physical devices or appurtenances in connection with, or reasonably attendant to,
broadband infrastructure.
8. "Governmental Entity" means a county, city, town, special taxing district organized pursuant
to title 48 or an agency or instrumentality of this state.
ASET Essential Infrastructure for Information Delivery Appendices Page 51
9. "Service Charge" means any periodic charge imposed by a broadband provider or by the
ABICO for any infrastructure project financed by the authority pursuant to any assistance
agreement.
10. "Underserved Area" means any described location where broadband service is not available
to at least one-half of the residents, or where broadband service is not available from at least
three providers other than by satellite.
11. "Unserved Area" means any described location where broadband service is not available to
the residents other than by satellite.
40-1402. Arizona Broadband Infrastructure Coordination Office
A. The Arizona Broadband Infrastructure Coordination Office is established.
B. The ABICO is a corporate and political body and is not an agency of this state or of any
political subdivision of this state.
C. The ABICO is a public body for the purposes of Title 38, Chapter 3, Article 3.1.
A. The ABICO is regarded as performing a governmental function in carrying out the purposes
of this chapter and is not required to pay taxes or assessments on:
1. The property acquired, constructed or financed.
2. The activities of the ABICO in maintaining and caring for the property.
3. The monies derived from the activities of the ABICO.
40-1403. Board of directors; conflict of interest; classification
A. The ABICO shall be governed by a board of directors consisting of the following members:
1. The State of Arizona Chief Information Officer (CIO), or the state CIO’s designee, who shall
serve as chairperson of the board.
2. A senior member of the Arizona Commerce Authority or designee.
6. Five members appointed by the governor pursuant to section 38-211 to staggered five year
terms of office. At least one appointed member must be an enrolled member of an Indian tribe in
this state. No more than two appointed members may reside in different counties. An appointed
member may not serve more than two consecutive terms, except that service for a partial term of
less than three years does not count toward the two term limitation.
B. Members of the board are not eligible to receive compensation for their services but are
eligible for reimbursement of expenses pursuant to Title 38, Chapter 4, Article 2.
C. Members of the board are public officers for the purposes of Title 38, Chapter 3, Article 8.
D. Members of the board, employees of the ABICO and persons retained or under contract by
the ABICO shall not participate in any direct discussions or actions related to any project
financed under this chapter in which the person has any direct or indirect personal financial
interest. For the purposes of this subsection, a member of the board who is an employee or
official of a participant in or applicant shall not be considered to have a direct or indirect
personal financial interest in a project by virtue of the member's service alone. A violation of
this subsection is a class 1 misdemeanor.
40-1404. Administrative support
A. The Arizona Strategic Enterprise Technology (ASET) office of the Arizona Department Of
Administration (ADOA) shall provide:
1. General administrative support, equipment and office and meeting space to the ABICO.
2. Staff support for administrative and technical requirements of the ABICO.
B. The state treasurer shall serve as the treasurer or fiscal officer of the ABICO.
ASET Essential Infrastructure for Information Delivery Appendices Page 52
40-1405. Advisory panel
The Arizona Broadband Development Council (ABDC) shall serve as an advisory council to the
ABICO. In addition, the chairperson of the board of directors may appoint others to act in an
advisory role to assist the board as the chairperson considers necessary.
40-1406. Organizational and administrative powers and duties
A. The ABICO shall have an official seal that is judicially noticed.
B. As necessary to carry out its responsibilities under this chapter, the ABICO, through its board
of directors, may:
1. Sue and be sued.
2. Contract.
3. Acquire, hold, operate and dispose of property.
4. Employ, retain or contract for professional assistance.
5. Adopt and approve all policies and procedures of the ABICO.
40-1407. Functional and operational powers and duties
A. The ABICO, through its board of directors, may:
1. Petition the Federal Corporation Commission pursuant to section 1.1414(b) of the
commission's rules on pole attachments, certifying to the commission that Arizona preempts the
Commission from accepting pole attachment complaints under subpart j of part 1 of the rules;
transferring related rule making and adjudication roles on behalf of Arizona, to itself.
2. Provide technical staff and other professional assistance and adjudication as necessary for
implementing transferring Section 1.1414(b) of the Federal Communication Commission's rules
on pole attachments to the State Of Arizona.
3. Apply for, accept, and administer grants and other financial assistance from the United States
government and from other public and private sources to carry out its responsibilities under this
chapter.
4. Provide and enforce guidelines and best practices for broadband infrastructure permits and
easements with local governments and public and private rights-of-way providers.
5. Adjudicate disputes between providers and local governments and public and private rights-
of-way providers with designated powers of arbitration and mediation.
6. Establish and enforce rules and policies for fairly sharing broadband infrastructure enabled by
the use of public rights-of-way.
B. The board shall:
1. Develop and adopt funding criteria and prioritization schedules for broadband infrastructure
projects pursuant to this chapter and with consideration for recommendations submitted by
governmental and educational entities, telecommunications businesses, information services,
medical services and statewide trade and business organizations. For the purposes of this
paragraph, "prioritization schedule" means a list of broadband infrastructure that the ABICO has
evaluated and determined to be of priority for receiving assistance from the broadband universal
service fund.
2. Evaluate and select projects for technical and financial assistance under this chapter.
3. Impose administrative fees and penalties that are necessary to recover the costs incurred in
connection with providing technical assistance. All monies collected as administrative fees and
penalties shall be credited to the broadband universal service fund.
ASET Essential Infrastructure for Information Delivery Appendices Page 53
4. Adopt administrative rules pursuant to Title 41, Chapter 6 to carry out the requirements of
this chapter.
5. Consider developments and best practices in other states where broadband services are being
deployed for underserved areas, the broadband infrastructure in those areas and the direct and
indirect costs and benefits associated with the broadband infrastructure.
6. After considering existing state and regional broadband service assessments and information
that becomes available during the board's deliberations, evaluate:
(a) the resources, infrastructure and cost structures in place or available in the underserved areas
in this state for developing or accessing broadband services.
(b) the feasibility of using existing or alternative broadband infrastructure to support the
economical development of broadband infrastructure projects in underserved areas.
(c) whether broadband services would benefit the underserved areas, including applications
relating to commerce, medicine and education.
(d) for purposes of grants and other prioritization, and in conjunction with any federal
designation, define the meaning of the terms “Underserved”, “Unserved”, And “Served”,
“Broadband Deficit Area”, and other definitions appropriate to establishing conditions related to
adoption or availability of broadband in the State Of Arizona.
(e) other matters that the board considers being applicable to establishing effective broadband
services to underserved areas.
8. in conjuction with Arizona Broadband Development Council (ABDC) and other advisory
bodies or individuals, and upon their advice, adopt specific goals for deployment of broadband
services in unserved and underserved areas, including:
(a) the development of economically competitive access to broadband services in the public and
private sectors in each unserved and underserved area.
(b) the availability of broadband service access throughout the underserved areas to address
issues of unserved and underserved communities.
(c) the development and expansion of practical applications for the enhancement of economic
development and other public benefits.
(d) the development of affinities and interconnection among governmental entities, educational
institutions and private enterprise and other goals that the board considers to be in the public
interest.
(e) develop proposals and recommendations for the establishment and enhancement of
broadband services in unserved and underserved areas by:
(i) reviewing public policies for the promotion, development, and economically competitive use
of broadband communications.
(ii) identifying sources of funding and support, including leveraging of state, federal, and private
resources.
(iii) encouraging private and public participation in the development and use of broadband
services in underserved areas, including demand aggregation or resource leveraging to enhance
economic and technological development.
(iv) examining any other related issues.
40-1408. State rights-of-way and easements; definition
A. The ABICO, through its board of directors, shall adopt rules for the use of state owned
rights-of-way for broadband infrastructure requirements.
B. Excepting the State Land Trust land any agency of this state shall allow the use of any right-
of-way or easement it controls at cost, including administrative cost recovery, for the installation
ASET Essential Infrastructure for Information Delivery Appendices Page 54
of broadband infrastructure required by broadband providers to serve the unserved and
underserved areas of this state.
C. The State Land Commissioner shall provide for the use of state agency easements or rights-
of-way over state trust land consistent with its governing rules, statutes, and court decisions.
D. This section does not authorize a broadband provider to secure an exclusive right or
privilege. A broadband provider does not have an exclusive right of access or use concerning
any state or sub-division owned right-of-way.
E. For the purposes of this section, "right-of-way" means the area on, below or above a public
highway, road, street, alley, building, public easement or other corridor or space dedicated for
public travel or use, that is subject to the jurisdiction or control of a unit of government.
40-1409. Annual audit and report
A. The board shall cause an audit to be made of the funds administered by the ABICO. The
audit shall be conducted by a certified public accountant within one hundred twenty days after
the end of the fiscal year. The board shall immediately file a certified copy of the audit with the
auditor general.
B. The Auditor General may make any further audits and examinations as necessary and may
take appropriate action relating to the audit or examination pursuant to Title 41, Chapter 7,
Article 10.1. If the Auditor General takes no official action within twenty days after the audit is
filed, the audit is considered to be sufficient.
C. The board shall pay any fees and costs of the certified public accountant and Auditor General
under this section from the broadband universal service fund.
D. Not later than January 1 of each year the board shall make an annual report of its activities
during the preceding fiscal year, including a copy of the annual audit. The ABICO shall submit
copies of the report to the Governor, the President Of The Senate, the Speaker Of The House Of
Representatives, the Secretary Of State, the Arizona State Library, Archives And Public Records
and any other person requesting a copy.
Article 2. Technical assistance
40-1431. Projects; application for assistance; priority; approval or disapproval
A. The ABICO shall:
1. Establish forms for broadband providers to make application to the ABICO for access to
rights-of-way or infrastructure under the control of the ABICO.
2. Establish a procedure for receiving, reviewing, evaluating and approving or disapproving on
its merits each administratively complete and correct application for access to rights-of-way or
infrastructure under the control of the ABICO.
3. Adopt by rule criteria by which access to rights-of-way or infrastructure will be determined.
For access to rights of-way or infrastructure the criteria must include an assessment of the
technical and financial applications on a fair and equitable basis.
4. Adopt rules to establish priority for applications for access to rights-of-way or infrastructure
as provided by Section 40-1407, Subsection B, Paragraph 1.
B. The board shall:
1. Approve or disapprove applications for rights-of-way and infrastructure access and notify the
applicant of the action within ninety days after the date of the application.
2. Determine the order and priority of the applications under this chapter based on the merits of
the applications.
ASET Essential Infrastructure for Information Delivery Appendices Page 55
C. If an application is approved:
1. The board may condition the approval on assurances the board considers to be necessary to
ensure that the rights-of-way or infrastructure access will be used according to law and the terms
of the application.
2. The ABICO and the applicant shall enter into an assistance agreement as provided by either
Section 40-1432 or 40-1433. The agreement may provide for access to rights-of-way or
infrastructure by the ABICO to the broadband provider. The agreement may include any
conditions concerning financial assistance the board considers to be necessary.
D. The ABICO may:
1. Assess fees sufficient to cover the ABICO's costs related to the application.
Article 3. Financial provisions
40-1451. Annual budget
A. On or before June 30 of each year the board shall hold a public hearing to adopt a budget for
the following fiscal year that includes:
1. Receipts during the past fiscal year.
2. Expenditures during the past fiscal year.
3. Estimates of amounts necessary for expenses during the following fiscal year including
amounts proposed for administrative costs of the ABICO.
4. Anticipated revenue to the ABICO from each source in the following fiscal year.
5. A complete asset and liability statement.
6. A statement of profit or loss from operations.
7. Cash on hand as of the date the budget is adopted and the anticipated balance at the end of the
current fiscal year.
8. An itemized statement of commitments, reserves and anticipated obligations for the following
fiscal year.
B. The board may amend the budget on a finding of good cause.
40-xxxx. Alternative dispute resolution means and rules
A. The ABICO shall establish alternative dispute resolution means and rules for mediating,
arbitrating, and approving agreement and for resolving disputes under its scope of activities.
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Appendix E - Arizona Limiting Statutes and Rules
In this appendix we highlight pertinent aspects of Revised Arizona Statutes (A.R.S.’s)
that pertain to both local and state level entities-whose actions substantially impact the rate and
extent to which broadband services will become available to Arizona citizens. We start with a
review of A.R.S.’s that govern local entity activities relating to broadband services enablement
and barriers.
A.R.S.’s Currently Enabling and Limiting Local Arizona Entities’
Telecommunications Related Activities-Including Broadband
Political Subdivision Jurisdiction
A.R.S. §§ 9-581-9-583 and A.R.S. § 9-583(A) (2001). A political subdivision (county,
city, town.) has the authority to manage its public highways and exercise its police powers, but
may not exercise such power to prohibit the ability of any telecommunications company to
provide its service.
Political Subdivision Compensation
A.R.S. § 9-582(B) (2001). Any application or permit fees must be related to the costs
incurred by processing the application, and must also be assessed within a reasonable amount of
time after those costs are incurred.
A.R.S. § 9-582(D) (2001). Arizona permits a political subdivision and a
telecommunications licensee or franchisee to agree to an in-kind arrangement, but the costs of
the in-kind facilities offset the provider’s obligation to pay local transaction privilege taxes or
linear foot charges (applicable to interstate services) and must be equal to or less than the taxes
or charges.
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A.R.S.§ 9-582(D) (2001). “The in-kind facilities . . . shall remain in possession and
ownership of the political subdivision after the term of the existing license or franchise expires.”
A.R.S. § 9-582(D) (2001). “. . . [A] political subdivision shall not require a
telecommunications corporation to provide in-kind services, make in-kind payments or pay a fee
in addition to the fees [authorized in the act] as a condition of consent to use a highway to
provide telecommunications services.”
A.R.S. § 9-582(D) (2001). “Notwithstanding subsections A and B of this section, in a
license or franchise, a political subdivision and a telecommunications corporation may agree to
in-kind payments for use of the public highways different from those specified in subsection A
or B of this section.”
A.R.S. § 9-582(E) (2001). “. . . The license or franchise shall be structured so that the in-
kind payments made for use of the public highways to provide interstate telecommunications
services under the license or franchise are less than or equal to and are offset against any linear
foot charge owed pursuant to § 9-583, subsection C, paragraphs 2 and 3.”
Political Subdivision Nondiscrimination Requirements
A.R.S. § 9-583(B) (2001). Licenses or franchises must be issued on a competitively-
neutral basis, and within a reasonable time after application. The requirements for such licenses
or permits are limited to. 1) Proof that the applicant has received a certificate of convenience and
necessity from the AZ Corporation Commission; 2) Public highway use requirements; 3)
Mapping requirements; 4) Insurance, performance bonds, or similar requirements; and 5)
Enforcement and administrative provisions.
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A.R.S. § 9-581, para. 4. (2001). Cable companies are exempt from regulatory statutes
relating to rights-of-way because they are excluded from the definition of “telecommunications.”
However, under A.R.S. § 9-582 (G). “A municipality may not discriminate against a cable
operator in its provision of telecommunications systems if that cable operator complies with the
requirements applicable to telecommunications corporations.”
A.R.S. § 9-582 (A), (E) (2001). Any telecommunications company that was granted its
franchise prior to November 1, 1997 is exempt from paying any additional fees.
Political Subdivision Mediation Requirements
A.R.S. § 9-582(A)(3) (2001). “. . . Political subdivisions shall establish a nonbinding
outside arbitration procedure to attempt to resolve disputes over recovery of reasonable,
proportionate and attributable costs of construction permit fees pursuant to this paragraph and
other fees pursuant to this article before the disputes are submitted to a court for resolution.”
A.R.S.’s Currently Enabling and Limiting the Arizona Corporation Commission’s
Telecommunications Activities -which are not Interpreted as Including Broadband.
Under authority of the Arizona Constitution Article XV, § 3, and A.R.S. § 40-202 et seq.,
the Secretary of State of Arizona has published “Title 14. Public Service Corporations;
Corporations and Associations; Securities Regulation, Chapter 2. Corporation Commission,
Fixed Utilities.” Within this publication, available here,1 are Article 5-Telephone Utilities and
Article 11-Competitive Telecommunications Services. These two Articles are the subject of this
section.
Title 14, Article 5, Telephone Utilities, Of The Arizona Administrative Code.
1 http://www.azsos.gov/public_services/Title_14/14-02.pdf
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The Article 5 preamble indicates that these rules govern all telecommunication
companies that fall within the jurisdiction of the Arizona Corporation Commission. Under
Article 5, the ACC takes a very narrow interpretation of what constitutes a “telecommunications
company,” framing it as being a “Utility”-the company providing telephone service to the public
in compliance with state law. This narrow Article 5 definition contrasts with the ACC’s broader
Article 11 interpretation of a “telecommunications company,” wherein it defines a “public
service corporation,” as per the Arizona Constitution, Article 15, § 2, which provides
telecommunications services within Arizona and over which the Arizona Corporation
Commission has jurisdiction.
R14-2-501. Definitions
Pertinent definitions in Article 5 include the following.
* * * *
5. “Basic exchange service”. Service provided to business or residential customers at a
flat or measured rate which affords access to the telecommunications network.
15. “Residential subdivision development”. Any tract of land which has been divided
into 4 or more contiguous lots with an average size of 1 acre or less for use for the
construction of residential buildings or permanent mobile homes for either single or
multiple occupancy.
16. “Rules”. The regulations set forth in the tariffs which apply to the provision of
telephone service.
17. “Service area”. The territory in which the utility has been granted a Certificate of
Convenience and Necessity and is authorized by the Commission to provide telephone
service.
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20. “Tariffs”. The documents filed with the Commission which list the utility services
and products offered by the utility and which set forth the terms and conditions and a
schedule of the rates and charges for those services and products.
24. “Utility”. The company providing telephone service to the public in compliance with
state law.
R14-2-502. Certificate of Convenience and Necessity for telephone utilities;
additions/extensions; abandonments
* * * *
Each utility which extends utility service to a person not located within its certificated
service area, but located in a non-certificated area contiguous to its certificated service
area, shall, notify the Commission of such service extension.
R14-2-505. Service connections and establishments
B. Access line connection;
3. Easements and rights-of-way
a. Each customer shall grant adequate easement and right-of-way satisfactory to the
utility to ensure that customer's proper service connection. Failure on the part of the
customer to grant adequate easement and right-of-way shall be grounds for the utility to
refuse service.
b. When a utility discovers that a customer or his agent is performing work or has
constructed facilities adjacent to or within an easement or right-of-way and such work,
construction or facility poses a hazard or is in violation of federal, state or local laws,
ordinances, statutes, rules or regulations, or significantly interferes with the utility's
access to equipment, the utility shall notify the customer or his agent and shall take
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whatever actions are necessary to eliminate the hazard, obstruction or violation at the
customer's expense.
D. Residential subdivision development and permanent mobile home parks.
* * * *
2. Rights-of-way and easements
a. The utility shall construct or cause to be constructed and shall own, operate and
maintain all underground communication feeder, distribution and service lines along
public streets, roads and highways and on public lands and private property which the
utility has the legal right to occupy.
b. Rights-of-way and easements suitable to the utility must be furnished by the developer
at no cost to the utility and in reasonable time to meet service requirements. No
underground communication facilities shall be installed by a utility until the final grades
have been established and furnished to the utility. In addition, the easement strips, alleys
and streets must be graded to within 6 inches of final grade by the developer before the
utility will commence construction. Such clearance and grading must be maintained by
the developer during construction by the utility.
* * * *
3. Installation of underground communication lines within subdivision and multiple
occupancy residential developments:
a. The developer shall provide the trenching backfill (including any imported backfill
required), compaction, repaving, and any earthwork required to install the underground
communication system . . .
* * * *
d. . . . . the utility shall use such common trench as long as the utility's design layout,
easement specification, routing and scheduling requirements can be met, unless otherwise
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agreed upon by utility and developer in writing or as otherwise established by the
Commission.
4. Special conditions
* * * *
b. . . . no utility shall construct overhead communication lines in any new subdivision or
new multiple occupancy residential development to which this regulation is applicable . .
. .
Title 14, Article 11, Competitive Telecommunications Services, Of The Arizona Administrative
Code.
R14-2-1101. Application of Rules
These rules govern the provision of competitive, intrastate telecommunications services
to the public by telecommunications companies subject to the jurisdiction of the Arizona
Corporation Commission.
R14-2-1102. Definitions
Pertinent definitions in Article 11 include the following. Here, under Definition 16-the
ACC defines a broad category of telecommunications services. Arguably including broadband
services-excepting the limitation that the services be entirely intrastate. It is important to note the
ACC does not consider broadband services to be within this definition.
* * * *
1. “Arizona Corporation Commission” or “Commission.” The regulatory agency of the
state of Arizona having jurisdiction over public service corporations operating in
Arizona.
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* * * *
4. “Competitive Telecommunications Service.” Any telecommunications service where
customers of the service within the relevant market have or are likely to have reasonably
available alternatives.
* * * *
15. “Telecommunications Company.” A public service corporation, as defined in the
Arizona Constitution, Article 15, § 2, that provides telecommunications services within
the state of Arizona and over which the Commission has jurisdiction.
16. “Telecommunications Service.” Any transmission of interactive switched and non-
switched signs, signals, writing, images, sounds, messages, data, or other information of
any nature by wire, radio, lightwave, or any other electromagnetic means (including
access services), which originate and terminate in this state and are offered to or for the
public, or some portion thereof, for compensation.
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Appendix F - PCIA State Model Siting Legislation
PCIA, The Wireless Infrastructure Association, has developed this state model legislation2 for
siting vertical structures such as towers for wireless broadband coverage. The model legislation
encourages collocation on existing facilities and provides municipalities guidelines on how to
effectively develop their own wireless siting ordinances. It attempts to balance municipalities'
concerns about the aesthetic and safety impacts of wireless facilities with citizens' demand for
ubiquitous wireless communications. This model legislation has been endorsed by the National
Conference of State Legislatures (NCSL) and the American Legislative Exchange Council
(ALEC).
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF _____
Legislative Intent: These laws are enacted for the purpose of: ensuring (1) the safe and efficient
integration of facilities necessary for the provision of advanced wireless communications
services throughout the community and (2) the ready availability of reliable wireless service to
the public and government agencies and first responders, with the intention of furthering the
public safety and general welfare.
SECTION 1: Definitions: For the purposes of these regulations, the following definitions
shall apply:
Authority: A municipality, township, county or regional planning commission or any municipal
or county legislative body that has adopted planning and zoning regulations for all or the
majority of land uses within the jurisdiction.
Antenna: Communications equipment that transmits and receives electromagnetic radio signals
used in the provision of all types of wireless communications services.
Building Permit: An official administrative authorization issued by the local authority prior to
beginning construction of any new or existing support structure. The issuance of a building
permit is not a mechanism for the approval or denial of a zoning or land use application.
Collocation: The placement or installation of wireless facilities, on existing structures, including
towers, buildings, utility poles, and water tanks in a manner that negates the need to construct a
new free standing support structure such as a tower.
Equipment Enclosure: An enclosed structure, cabinet, or shelter used to contain radio or other
equipment necessary for the transmission or reception of wireless communication signals.
Existing Tower: A free standing support structure constructed prior to the enactment of this
statute that is used to provide wireless services.
2 Word document downloadable at
http://www.pcia.com/index.php?option=com_docman&task=doc_download&gid=2&Itemid.
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Local Government: Any city, township or county municipality or other legally authorized public
agency recognized by the State.
Wireless Support Structure: A freestanding structure, such as a monopole or tower designed to
support wireless facilities.
Utility pole: A structure owned and/or operated by a public utility regulated by the state PUC
that is designed specifically for and used to carry lines, cables, or wires for telephony, cable
television, or electricity or to provide lighting.
Application: A formal request submitted to the local authority to construct or modify a wireless
support structure or a wireless facility.
Wireless Facility: The set of equipment and network components, exclusive of the underlying
support structure or tower, including, but not limited to, antennas, transmitters, receivers base
stations, power supplies cabling and associated equipment necessary to provide wireless services
to a discrete geographic area.
SECTION 2: Construction of New Wireless Facilities and Support Structures
(1) An authority, as defined, may plan for and regulate the siting of wireless
communications facilities in accordance with locally adopted planning or
zoning regulations and in conformity with this title.
(2) Any person that is engaged in the business of providing wireless
telecommunications services or the wireless telecommunications
infrastructure required therefore, and that proposes to construct a wireless
telecommunications support structure within the jurisdiction of any planning
authority that has adopted planning and zoning regulations in accordance with
this title shall:
(a) Submit the necessary copies and attachments of the applicant’s
completed application to the appropriate planning authority to
construct a wireless telecommunications support structure.
(b) Comply with any local ordinances concerning land use and the
appropriate permitting processes, subject to the limitations imposed by
this chapter.
(3) All records (documents, electronic data, etc.) in the possession or custody of
authority personnel are subject to the state Public Records Act. Disclosure of
such records should be consistent with the applicable state law.
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(4) After an applicant’s submission of a completed application to construct a wireless
telecommunications support structure, the authority shall:
(a) Review the completed application in light of its agreement with the
comprehensive plan and locally adopted zoning regulations;
(b) Make its final decision to approve or disapprove the application; and
(c) Advise the applicant in writing of its final decision within ___ days
commencing from the date that the application is deemed complete by
the authority or within a date certain specified in a written agreement
between the authority and the applicant
(5) A party aggrieved by the final action of an authority denying an application under
the provisions of this chapter may bring an action for review in any court of competent
jurisdiction.
SECTION 3: Collocation of Antennas and Equipment on or at Existing Towers and other
Structures
(1) In deploying, or expanding commercial and public safety wireless networks, the
collocation of new antennas and equipment on existing support structures,
including buildings, utility poles, water towers or existing conforming or non-
conforming communication towers is preferred constructing new towers or
support structures.
(2) Applications for collocation on existing or replacement utility poles owned and
operated by a public utility where the poles are located in the public right-of-
way will not be subject to the authority’s zoning, land use, or regulatory
approval when the height of the pole will not be increased by more than the
minimum separation safety zone required by the pole owner or by 25% of the
height of the original pole, whichever is greater. Such collocations may be
subject to applicable Federal, State and PUC regulation for pole attachments.
(3) Irrespective of Section 3(2) and 3(3), an application for a collocation on an
existing structure may be subject to the issuance of a building permit and any
fee associated with such a permit, assuming that such fees are commensurate
with permit fees for other uses.
(4) The authority may deny an application to construct a new wireless
communications support structure based on an applicant's unwillingness to
evaluate the reasonable feasibility of collocating new antennas and equipment
on an existing structure or structures specifically identified by the authority.
(5) The authority may not deny an application to construct a new wireless
communications support structure under 3(5) if evidence is provided that
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collocation is technically infeasible or unduly economically burdensome on the
wireless service provider.
SECTION 4. Limitations.
An authority may not:
(1) Impose environmental testing, sampling, or monitoring requirements or
other compliance measures for radio frequency emissions on wireless
communications facilities that are categorically excluded under the FCC’s rules
for radio frequency emissions pursuant to 47 CFR 1.1307(b)(1);
(2) Institute a moratorium on the construction of new wireless
communications support structures lasting over 90 days in duration or institute
any such moratorium within 6 months of the conclusion of any previous
moratorium on the construction of wireless communications support structures.
(3) Charge an application fee consulting fee or other fee associated with the
submission, review, processing and approval of a permit that is not required for
other types of commercial development. Fees imposed by a local authority or by a
third-party entity providing review or technical consultation to the local authority,
cannot exceed what is usual and customary. In no case should total charges and
fees exceed ____ for a collocation or ______ for the placement and construction
of a new wireless facility and/or support structures.
(4) Permit third party consultants to charge wireless telecommunications
service providers for any travel expenses incurred in the consultant’s review of
wireless telecommunications permits.
(5) Establish or enforce regulations or procedures for RF signal strength or the
adequacy of service quality in the consideration of any application for the
construction, modification, maintenance, or operation of a wireless facility and/or
support structure.
(6) Impose surety requirements, including bonds, escrow deposits, or any
other type of financial surety, to ensure that abandoned or unused facilities can be
removed unless the jurisdiction imposes similar requirements on other permits for
other types of commercial development or land uses. If surety requirements are
imposed they must be competitively neutral, non discriminatory, reasonable in
amount and commensurate with the historical record for local facilities and
structures that fall into disuse.
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(7) Prohibit the placement of emergency power systems that comply with
Federal and State environmental requirements;
(8) Discriminate on the basis of the ownership of any property, structure or
tower when promulgating rules or procedures for siting wireless facilities or for
evaluating applications for collocations or new wireless facilities or support
structures.
(9) Condition the approval of a new support structure or collocation on the
agreement of the structure owner to provide space on the structure for local
governmental services at less than the market rate.
(10) Limit the duration of any permit for a wireless facility or support structure
when evaluating an application for a wireless facility or collocation.
(11) Require an applicant to construct a Distributed Antenna System in lieu of
constructing a new wireless support structure or collocating on an existing
structure, such as a utility pole, existing tower or building.
SECTION 5. If any provision of this act or the application thereof to any person or
circumstance is held invalid, such invalidity shall not affect other provisions or applications of
the act which can be given effect without the invalid provision or application, and to that end the
provisions of this act are declared to be severable.
This Act shall take effect on _______, the public welfare requiring it.
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Appendix G - PCIA Wireless Facilities Siting Model Ordinance
PCIA, The Wireless Infrastructure Association, has developed this model ordinance 3to assist
municipal authorities with the challenge of siting wireless communications facilities. The
ordinance encourages and streamlines collocations on existing facilities, while granting
municipalities’ access to the critical information they need to make informed decisions about
new wireless facilities. It is based on the 2007 North Carolina siting legislation, SB831.
I. Purpose and Legislative Intent. The purpose of this Wireless Telecommunications Ordinance is to ensure that residents,
public safety operations and businesses in [Jurisdiction] have reliable access to wireless
telecommunications networks and state of the art communications services while also
ensuring that this objective is achieved in a fashion that preserves the intrinsic aesthetic
character of the community and is accomplished according to [Jurisdiction’s] zoning,
planning, and design standards. The Telecommunications Act of 1996 preserved, with
certain limitations, local government land use and zoning authority concerning the placement,
construction, and modification of wireless telecommunications facilities.
To accomplish the above stated objectives and to ensure that the placement, construction or
modification of wireless telecommunications facilities complies with all applicable Federal laws
and is consistent with [the Jurisdiction’s] land use policies, [the Jurisdiction] is adopts this
single, comprehensive, wireless telecommunications ordinance. No provisions of this Ordinance
shall apply to the siting of Distributed Antenna Systems (DAS) or wireless facilities located
within
and intended to provide wireless coverage within a structure.
This Ordinance establishes parameters for the siting of Wireless Telecommunications Facilities.
By enacting this Ordinance it is [the Jurisdiction’s] intent to:
(1) Ensure [Jurisdiction] has sufficient wireless infrastructure to support its
public safety communications throughout [Jurisdiction];4
(2) Ensure access to reliable wireless communications services throughout all areas of
[the Jurisdiction];5
(3) Encourage the use of Existing Structures for the collocation of
Telecommunications Facilities;6
3 A MS Word document version is downloadable at
http://www.pcia.com/images/pcia_model_zoning_ordinance_final_2010.doc. 4 Many public safety operations utilize commercial networks; this trend will continue to grow as commercial
providers further deploy wireless broadband systems. 5 This is important because wireless users depend on their mobile devices everywhere - in their homes and offices,
and while on travel. 6 A core policy goal here is to encourage co-location of wireless facilities on existing structures.
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(4) Encourage the location of Support Structures, to the extent possible, in
areas where any potential adverse impacts on the community will be
minimized;
(5) Facilitate the responsible deployment of Telecommunications Facilities in
residential areas to ensure comprehensive wireless services across
[Jurisdiction];
(6) Minimize the potential adverse effects associated with the construction
of Monopoles and Towers through the implementation of reasonable
design, landscaping, and construction practices;
(7) Ensure public health, safety, welfare, and convenience.
II. Definitions. For the purposes of this Ordinance, the following definitions apply:
Abandon - Occurs when an owner of a Support Structure intends to permanently and
completely cease all business activity associated therewith.
Accessory Equipment -- Any equipment serving or being used in conjunction with a
Telecommunications Facility or Support Structure. This equipment includes, but is not
limited to, utility or transmission equipment, power supplies, generators, batteries, cables,
equipment buildings, cabinets and storage sheds, shelters or other structures.
Administrative Approval -- Zoning approval that the [Zoning Administrator] or designee
is authorized to grant after Administrative Review.
Administrative Review -- Non-discretionary evaluation of an application by the [Zoning
Administrator] or designee. This process is not subject to a public hearing. The procedures
for Administrative Review are established in Section IV E of this Ordinance.
Antenna -- Any structure or device used to collect or radiate electromagnetic waves for the
provision of services including, but not limited to, cellular, paging, personal communications
services (PCS) and microwave communications. Such structures and devices include, but are
not limited to, directional antennas, such as panels, microwave dishes and satellite dishes, and
omnidirectional antennas, such as whips. This definition does not apply to broadcast antennas,
antennas designed for amateur radio use, or satellite dishes designed for residential or
household purposes.
Collocation
7 -- The act of siting Telecommunications Facilities on an Existing Structure
without the need to construct a new support structure and without a Substantial Increase in the
size of a Existing Structure.
Carrier on Wheels or Cell on Wheels (“COW”) -- A portable self-contained
7 This definition is consistent with the FCC’s Declaratory Ruling on Wireless Infrastructure Siting.
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Telecommunications Facility that can be moved to a location and set up to provide wireless
services on a temporary or emergency basis. A COW is normally vehicle-mounted and
contains a telescoping boom as the Antenna support structure.
Distributed Antenna Systems (“DAS”) - A network of spatially separated antenna nodes
connected to a common source via a transport medium that provides wireless service
within a geographic area or structure.
Existing Structure - Previously erected Support Structure or any other structure, including
but not limited to, buildings and water tanks, to which Telecommunications Facilities can
be attached.
Major Modifications -- Improvements to existing Telecommunications Facilities or
Support Structures that result in a Substantial Increase to the Existing Structure.
Collocation of new Telecommunications Facilities to an existing Support Structure
without Replacement of the structure shall not constitute a Major Modification.
Minor Modifications -- Improvements to Existing Structures that result in some material
change to the Facility or Support Structure but of a level, quality or intensity that is less than a
Substantial Increase. Minor Modifications include the Replacement of the structure.
Monopole --A single, freestanding pole-type structure supporting one or more Antenna.
For purposes of this Ordinance, a Monopole is not a Tower.
Ordinary Maintenance -- Ensuring that Telecommunications Facilities and Support Structures
are kept in good operating condition. Ordinary Maintenance includes inspections, testing and
modifications that maintain functional capacity, aesthetic and structural integrity; for example
the strengthening of a Support Structure’s foundation or of the Support Structure itself. Ordinary Maintenance includes replacing Antennas of a similar size, weight, shape and color and Accessory Equipment within an existing Telecommunications Facility and relocating the Antennas of approved Telecommunications Facilities to different height levels on an existing Monopole or Tower upon which they are currently located.
8 Ordinary Maintenance does not
include Minor and Major Modifications.
Replacement -- Constructing a new Support Structure of proportions and of equal height or
such other height that would not constitute a Substantial Increase to a pre-existing Support
Structure
in order to support a Telecommunications Facility or to accommodate Collocation and
removing the pre-existing Support Structure.
Stealth Telecommunications Facility
9-- Any Telecommunications Facility that is integrated
as an architectural feature of an Existing Structure or any new Support Structure designed so
that the purpose of the Facility or Support Structure for providing wireless services is not
8 The description of antenna swaps as “ordinary maintenance” is important because carriers regularly upgrade
antennas as part of periodic network improvements. 9 The decision to employ stealth technology involves a variety of engineering, structural and financial factors, and
should be made by the network operators.
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readily apparent to a casual observer.
Substantial Increase:
10 Occurs when:
(1) [t]he mounting of the proposed antenna on an Existing Structure would
increase the existing height of the Existing Structure by more than 10%, or by the
height of one additional antenna array with separation from the nearest existing
antenna not to exceed twenty feet, whichever is greater, except that the mounting of
the proposed antenna may exceed the size limits set forth in this paragraph if
necessary to avoid interference with existing antennas; or
(2) [t]he mounting of the proposed antenna would involve the installation of
more than the standard number of new equipment cabinets for the technology involved,
not to exceed four, or more than one new equipment shelter; or
(3) [t]he mounting of the proposed antenna would involve adding an
appurtenance to the body of the Existing Structure that would protrude from the edge of
the Existing Structure more than twenty feet, or more than the width of the tower
structure at the level of the appurtenance, whichever is greater, except that the mounting
of the proposed antenna may exceed the size limits set forth in this paragraph if
necessary to shelter the antenna from inclement weather or to connect the antenna to the
tower via cable; or
(4) [t]he mounting of the proposed antenna would involve excavation outside
the current Existing Structure site, defined as the current boundaries of the leased or
owned property surrounding the Existing Structure and any access or utility easements
currently related to the site.
Support Structure(s) - A structure designed to support Telecommunications Facilities
including, but not limited to, Monopoles, Towers, and other freestanding self-supporting
structures.
Telecommunications Facility(ies) -- Any unmanned facility established for the purpose of
providing wireless transmission of voice, data, images or other information including, but
not limited to, cellular telephone service, personal communications service (PCS), and
paging service. A Telecommunication Facility can consist of one or more Antennas and
Accessory Equipment or one base station.
Tower -- A lattice-type structure, guyed or freestanding, that supports one or more Antennas.
III. Approvals Required for Telecommunications Facilities and Support Structures.
(A) Administrative Review
(i) Collocations and Minor Modifications shall be permitted in any zoning
district after Administrative Review and Administrative Approval in accordance
with the standards set forth in this Ordinance.
(ii) New Support Structures that are less than sixty (60)
11 feet in height shall
10
This definition is taken from the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas.
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be permitted in any zoning district except residential after Administrative
Review and Administrative Approval in accordance with the standards set
forth in this Ordinance.
(iii) Stealth Telecommunications Facilities that are less than sixty (60) feet
in height shall be permitted in any residential district after Administrative
Review and Administrative Approval in accordance with the standards set
forth in this Ordinance.
(iv) Stealth Telecommunications Facilities up to 150 feet shall be permitted in
any zoning district other than residential after Administrative Review and
Administrative Approval in accordance with the standards set forth in this
Ordinance except as noted above.
(v) New Support Structures up to one hundred ninety-nine (199) feet in
height shall be permitted in any Industrial District after Administrative
Review and Administrative Approval in accordance with the standards set
forth in this Ordinance.
(vi) Monopoles or Replacement poles located in utility easements or rights-
of- way shall be permitted in any zoning district after Administrative
Review and Administrative Approval in accordance with the standards set
forth in this Ordinance.
(vii) The use of COWs shall be permitted in any zoning district after
Administrative Review and Administrative Approval in accordance with the
standards set forth in this Ordinance if the use is not otherwise exempt. If the
use of the COW is either not in response to a declaration or emergency, or will
last in excess of one hundred-twenty (120) days, Administrative Review and
Administrative Approval shall also be required.
(B) Special Permit.
12 Telecommunications Facilities and Support Structures not
permitted by Administrative Approval shall be permitted in any district upon
the granting of a Special Permit from the [Zoning Board] in accordance with
the standards set forth in this Ordinance.
(C) Exempt. Ordinary Maintenance of existing Telecommunications Facilities and
Support Structures, as defined herein, shall be exempt from zoning and
permitting requirements. In addition, the following facilities are not subject to
the provisions of this Ordinance: (1) antennas used by residential households
solely for
broadcast radio and television reception; (2) satellite antennas used solely for
11
Sixty feet is a suggested height but actual height requirements may vary based upon local topography. 12
This process refers to whatever quasi-judicial process the Jurisdiction already has in place. Such processes are also
known as “special use” and “conditional use” among other names. Jurisdictions should conform this section to their
existing language.
ASET Essential Infrastructure for Information Delivery Appendices Page 74
residential or household purposes; (3) COWs placed for a period of not more
than one hundred twenty (120) days at any location within [the Jurisdiction]
after a declaration of an emergency or a disaster; and (4) television and
AM/FM radio broadcast towers and associated facilities.
IV. Telecommunications Facilities and Support Structures Permitted by
Administrative
Approval.
(A) Telecommunications Facilities Located on Existing Structures
(1) Telecommunications Facilities are permitted in all zoning districts
when located on any Existing Structure subject to Administrative
Approval in accordance with the requirements of this Part.
(2) Antennas and Accessory Equipment may exceed the maximum
building height limitations within a zoning district, provided they do
not constitute a Substantial Increase.
(3) Minor Modifications are permitted in all zoning districts subject to
Administrative Approval in accordance with the requirements of this
Part. (B) New Support Structures
(1) New Support Structure less than sixty (60) feet in height shall be
permitted in all zoning districts except residential districts in accordance
with the requirements of this Part.
(2) Stealth Telecommunications Facilities that are less than sixty (60) feet in
height shall be permitted in any residential district after Administrative
Review and Administrative Approval provided that it meets the
applicable Stealth Telecommunications Facility standards in accordance
with this Ordinance
(3) New Support Structures up to one hundred ninety-nine (199) feet in
height shall be permitted in all Industrial Districts in accordance with the
requirements of this Part. The height of any proposed support structure
shall not exceed the minimum height necessary to meet the coverage or
capacity objectives of the Facility. The setback of the structure shall be
governed by the setback requirements of the underlying zoning district.
(4) A Monopole or Replacement pole that will support utility lines as well
as a Telecommunications Facility shall be permitted within utility
easements or rights-of-way, in accordance with requirements of this
Part.13
13
This section allows for efficient use of public rights-of-way for the provision of wireless services.
ASET Essential Infrastructure for Information Delivery Appendices Page 75
(a) The utility easement or right-of-way shall be a minimum of
one hundred (100) feet in width.
(b) The easement or right-of-way shall contain overhead utility
transmission and/or distribution structures that are eighty (80)
feet or greater in height.
(c) The height of the Monopole or replacement pole may not
exceed by more than thirty (30) feet the height of existing
utility support structures.
(d) Monopoles and the Accessory Equipment shall be set back a
minimum of fifteen (15) feet from all boundaries of the
easement or right-of-way.
(e) Single carrier Monopoles may be used within utility
easements and rights-of-way due to the height restriction
imposed by Subsection (c) above.
(f) Poles that use the structure of a utility tower for support are
permitted under this Part. Such poles may extend up to
twenty (20) feet above the height of the utility tower.
(5) Monopoles or Replacement poles located on public property or within
public rights-of-way that will support public facilities or equipment in
addition to Telecommunications Facilities shall be permitted in accordance
with requirements of this Part. Examples include, but are not limited to,
municipal communication facilities, athletic field lights, traffic lights, street
lights, and other types of utility poles in the public right-of- way.
(C) Stealth Telecommunications Facilities
(1) Stealth Telecommunications Facilities shall be permitted in all zoning
districts after Administrative Review and Administrative Approval in
accordance with the requirements below. Stealth facilities in residential
areas must not exceed sixty (60) feet and comply with the requirements
below in order to qualify for Administrative Review.
(a) Antennas must be enclosed, camouflaged, screened, obscured or
otherwise not readily apparent to a casual observer.
(b) Existing Structures utilized to support the Antennas must be allowed
within the underlying zone district. Such structures may include, but
are not limited to, flagpoles, bell towers, clock towers, crosses,
monuments, smoke stacks, parapets, and steeples.
(c) Setbacks for Stealth Facilities that utilize a new structure shall be
ASET Essential Infrastructure for Information Delivery Appendices Page 76
governed by the setback requirements of the underlying zoning
district.
(D) COW Facilities and Minor Modifications
(1) The use of COWs shall be permitted in any zoning district after
Administrative Review and Administrative Approval in accordance with
the standards set forth in this Ordinance if the use of the COW is either
not in response to a declaration or emergency by the Governor or will
last in excess of one hundred-twenty (120) days.
(E) General Standards, Design Requirements, and Miscellaneous Provisions
(1) Unless otherwise specified herein, all Telecommunications Facilities
and Support Structures permitted by Administrative Approval are
subject to the applicable general standards and design requirements of
Section VI and the provisions of Section VII.
(F) Administrative Review Process
(1) All Administrative Review14
applications must contain the
following: (a) Administrative Review application form signed by
applicant. (b) Copy of lease or letter of authorization from property
owner evidencing applicant’s authority to pursue zoning application. Such submissions need not disclose financial lease terms.
(c) Site plans detailing proposed improvements which complies
with [Jurisdiction’s existing site plan requirements]. Drawings
must depict improvements related to the requirements listed in
this Part, including property boundaries, setbacks, topography,
elevation sketch, and dimensions of improvements.
(d) In the case of a new Support Structure:
(i) Statement documenting why collocation cannot meet the
applicant's requirements. Such statement may include
justifications, including why collocation is either not
reasonably available or technologically feasible as
necessary to document the reasons why collocation is not
14
The name of this process should be conformed to the jurisdiction’s existing name for a similar process.
ASET Essential Infrastructure for Information Delivery Appendices Page 77
a viable option;15
and
(ii) The applicant shall provide a list of all the existing
structures considered as alternatives to the proposed
location. The applicant shall provide a written
explanation why the alternatives considered were either
unavailable, or technologically or reasonably infeasible. (iii) Applications for new Support Structures with proposed
Telecommunications Facilities shall be considered
together as one application requiring only a single
application fee.
(e) Administrative Review application fee as listed in
[Jurisdiction’s published fee schedule].16
(2) Procedure
17
(a) Within thirty (30) days of the receipt of an application for
Administrative Review, the [Zoning Administrator] shall either:
(1) inform the Applicant in writing the specific reasons why the
application is incomplete and does not meet the submittal
requirements; or (2) deem the application complete. If the
Zoning Administrator informs the Applicant of an incomplete
application within thirty (30) days, the overall timeframe for
review is suspended until such time that the Applicant provides
the requested information.
(b) An applicant that receives notice of an incomplete application
may submit additional documentation to complete the
application. An applicant’s unreasonable failure to complete the
application within sixty (60) business days after receipt of
written notice shall constitute a withdrawal of the application
without prejudice.18
An
application withdrawn without prejudice may be resubmitted upon the filing of a new application fee.
(c) The [Zoning Administrator] must issue a written decision
granting or denying the request within ninety (90) days of the
submission of the initial application unless:
(i) [Zoning Administrator] notified applicant that its
15
This evidentiary requirement allows local jurisdictions an opportunity to review an application’s alternatives, and
requires providers to prove that collocation is not viable in a specific circumstance. 16
The jurisdiction should include a cross reference to its published fee schedule. 17
The FCC has issued a Declaratory Ruling establishing the timeframes for a jurisdiction to act on an application to
site wireless infrastructure. The procedure here is reflective of that Ruling, however Jurisdiction can substitute its
current procedure so long as it to complies with the FCC’s decision. 18
Jurisdictions should conform this time requirement to meet their existing code for information submission.
ASET Essential Infrastructure for Information Delivery Appendices Page 78
application was incomplete within thirty (30) days of
filing. If so, the remaining time from the ninety (90) day
total review time is suspended until the Applicant
provides the missing information; or
(ii) Extension of time is agreed to by the Applicant.
Failure to issue a written decision within ninety (90) days
shall constitute an approval of the application.
(d) Should the [Zoning Administrator] deny the application, the
[Zoning Administrator] shall provide written justification for
the denial. The denial must be based on substantial evidence of
inconsistencies between the application and this Ordinance.
(f) Applicant may appeal any decision of the [Zoning Administrator]
approving, approving with conditions, or denying an application
or deeming an application incomplete, within thirty (30) days to
[the Local Appeals Board] in accordance with this Ordinance.19
V. Telecommunications Facilities and Support Structures Permitted by Special
Permit.
(A) Any Telecommunications Facility or Support Structures Not Meeting the
Requirements of Section IV Shall Be Permitted by Special Permit in all
Zoning Districts Subject to:
(1) The submission requirements of Section V (B) below; and
(2) The applicable standards of Sections VI and VII below; and
(3) The requirements of the special permit general conditions at Code
Section
. [Insert cross reference to Jurisdiction code section that
establishes general conditions applicable to Special Permits.]20
(B) Submission Requirements for Special Permit Applications
(1) All Special Permit applications for Telecommunications Facility and
Support Structures must contain the following:
(a) Special Permit application form signed by applicant.
19
The jurisdiction should substitute its standard process for appeal. 20
This allows for Special Permit/Conditional Permit review of proposed facilities that do not meet the “preferred”
standards of Section IV.
ASET Essential Infrastructure for Information Delivery Appendices Page 79
(b) Copy of lease or letter of authorization from the property
owner evidencing applicant’s authority to pursue zoning
application. Such submissions need not disclose financial
lease terms
(c) Written description and scaled drawings of the proposed
Support Structure, including structure height, ground and
structure design, and proposed materials.
(d) Number of proposed Antennas and their height above ground
level, including the proposed placement of Antennas on the
Support Structure.
(e) When locating within a residential area, a written technical
and operational analysis of why a Monopole or similar
structure at a height of less than one hundred (100) feet
cannot be used.21
(f) Line-of-sight diagram or photo simulation,
22 showing the
proposed Support Structure set against the skyline and viewed
from at least four (4) directions within the surrounding areas.
(g) A statement justifying why Collocation is not feasible.
Such statement shall include:
(i) Such technical information and other justifications as are
necessary to document the reasons why collocation is
not a viable option; and
(ii) A list of the existing structures considered as possible
alternatives to the proposed location and a written
explanation why the alternatives considered were
either unavailable or technologically infeasible.
(h) A statement that the proposed Support Structure will be
made available for Collocation to other service providers at
commercially reasonable rates.
(i) Notification of surrounding property owners as required by [insert
Jurisdiction’s relevant existing code provisions]
(j) Special Permit application fee as listed in [Jurisdiction’s
published fee schedule].23
21
If you are proposing a monopole under 100’ in a residential area no additional submission is required. 22
Photo simulations provide the community with valuable visual data showing the effect of the proposed new
structure on the visual landscape. 23
Same as IV(E)(2) above.
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(C) Procedure24
(1) Within thirty (30) days of the receipt of an application for
Administrative Review, the [Zoning Administrator] shall either: (1)
inform the Applicant in writing the specific reasons why the application
is incomplete and does not meet the submittal requirements; or (2) deem
the application complete and meet with the applicant. If the Zoning
Administrator informs the Applicant of an incomplete application
within thirty (30) days, the overall timeframe for review is suspended
until such time that the Applicant provides the requested information.
(2) If an application is deemed incomplete, an Applicant may submit
additional materials to complete the application. An applicant’s
unreasonable failure to complete the application within sixty (60)
business days after receipt of written notice shall constitute a withdrawal
of the application without prejudice.25
An application withdrawn without
prejudice may be resubmitted upon the filing of a new application fee.
(3) A complete application for a Special Permit shall be scheduled for a
hearing date as required by [insert Jurisdiction’s relevant existing
code provisions].
(4) Applications for new Support Structures with proposed
Telecommunications Facilities shall be considered as one
application requiring only a single application fee.
(5) The posting of the property and public notification of the application
shall be accomplished in the same manner required for any Special
Permit application under this Ordinance.
(6) The [Zoning Administrator] must issue a written decision granting or
denying the request within one hundred-fifty (150) days of the
submission of the initial application unless:
(i) [Zoning Administrator] notified applicant that its application
was incomplete within thirty (30) days of filing. If so, the
remaining time from the one hundred-fifty (150) day total
review time is suspended until the Applicant provides the
missing information; or
(ii) Extension of time is agreed to by the Applicant.
Failure to issue a written decision within one hundred-fifty (150)
days shall constitute an approval of the application.
24
The jurisdiction should include a cross reference to its published fee schedule. 25
Jurisdictions should conform this time requirement to meet their existing code for information submission.
ASET Essential Infrastructure for Information Delivery Appendices Page 81
VI. General Standards and Design Requirements.
(A) Design
(1) Support Structures shall be subject to the following:
(a) Shall be designed to accommodate a minimum number
of collocations based upon their height:
(i) Support structures sixty (60) to one hundred (100) feet
shall support at least two (2) telecommunications
providers;
(ii) Support structures from one hundred (100) to one
hundred-fifty feet (150) shall support at least three (3)
telecommunications providers; and
(iii) Support structures greater than one hundred-fifty
(150) feet in height shall support at least four (4)
telecommunications carriers.
(b) The compound area surrounding the Monopole must be of
sufficient size to accommodate Accessory Equipment for
the appropriate number of telecommunications providers
in accordance with Section VI(A)(1)(a).
(2) Stealth Telecommunications Facilities shall be designed to
accommodate the Collocation of other Antennas whenever
economically and technically feasible.
(3) Upon request of the Applicant, the [Zoning Board or Zoning
Administrator] may waive the requirement that new Support
Structures accommodate the collocation of other service providers if
it finds that collocation at the site is not essential to the public
interest, or that the construction of a shorter support structure with
fewer Antennas will promote community compatibility.
(B) Setbacks
(1) Property Lines. Unless otherwise stated herein, Support Structures
shall be set back from all property lines a distance equal to their height
measured from the base of the structure to its highest point.
(2) Residential Dwellings. Unless otherwise stated herein, Monopoles,
Towers and other Support Structures shall be set back from all off-site
residential dwellings a distance equal to the height of the structure.
There shall be no setback requirement from dwellings located on the
same parcel as the proposed structure. Existing or Replacement
structures shall not be subject to a setback requirement.
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(3) Unless otherwise stated herein, all Accessory Equipment shall be set
back from all property lines in accordance with the minimum setback
requirements in the underlying zoning district. Accessory Equipment
associated with an existing or Replacement utility pole shall not be
subject to a setback requirement.
(4) The [Zoning Board or Zoning Administrator] shall have the authority to
vary any required setback upon the request of the applicant if:
(a) Applicant provides a letter stamped by a certified structural engineer
documenting that the proposed structure’s fall zone is less than the
actual height of the structure.
(b) The Telecommunications Facility or Support Structure is
consistent with the purposes and intent of this Ordinance.
(C) Height
(1) In non-residential districts, Support Structures shall be designed to be the
minimum height needed to meet the service objectives of the applicant.
(2) In residential districts, Support Structures shall not exceed a height equal to
one hundred ninety-nine (199) feet from the base of the structure to the top
of the highest point, including appurtenances. Any proposed Support
Structure shall be designed to be the minimum height needed to meet the
service objectives of the applicant.
(3) In all districts, the [Zoning Board] shall have the authority to vary the
height restrictions listed in this section upon the request of the applicant
and a satisfactory showing of need for a greater height. With its waiver
request the Applicant shall submit such technical information or other
justifications as are necessary to document the need for the additional
height to the satisfaction of the [Zoning Board].
(D) Aesthetics
(1) Lighting and Marking. Telecommunications Facilities or Support
Structures shall not be lighted or marked unless required by the Federal
Communications Commission (FCC) or the Federal Aviation
Administration (FAA).
(2) Signage. Signs located at the Telecommunications Facility shall be limited
to ownership and contact information, FCC antenna registration number (if
required) and any other information as required by government regulation.
Commercial advertising is strictly prohibited.
(3) Landscaping. In all districts, the [Zoning Board or Zoning Administrator]
ASET Essential Infrastructure for Information Delivery Appendices Page 83
shall have the authority to impose reasonable landscaping requirements
surrounding the Accessory Equipment. Required landscaping shall be
consistent with surrounding vegetation and shall be maintained by the
facility owner. The [Zoning Board or Zoning Administrator] may choose to
not require landscaping for sites that are not visible from the public right-of-
way or adjacent property or in instances where in the judgment of the
[Zoning Board or Zoning Administrator], landscaping is not appropriate or
necessary.
(E) Accessory Equipment, including any buildings, cabinets or shelters, shall be
used only to house equipment and other supplies in support of the operation of
the Telecommunication Facility or Support Structure. Any equipment not used
in direct support of such operation shall not be stored on the site.
The Accessory Equipment must conform to the setback standards of the
applicable zone. In the situation of stacked equipment buildings, additional
screening/landscaping measures may be required by the [Zoning Board or
Zoning Administrator].
VII. Miscellaneous Provisions.
(A) Fencing
(1) Ground mounted Accessory Equipment and Support Structures shall
be secured and enclosed with a fence not less than six (6) feet in
height as deemed appropriate by the [Zoning Board] or [Zoning
Administrator].
(2) The [Zoning Board or Zoning Administrator] may waive the
requirement of Subsection (1) above if it is deemed that a fence is not
appropriate or needed at the proposed location.
(B) Abandonment and Removal. If a Support Structure is Abandoned, and it
remains Abandoned for a period in excess of twelve (12) consecutive months,
the [Jurisdiction] may require that such Support Structure be removed only
after first providing written notice to the owner of the Support Structure and
giving the owner the opportunity to take such action(s) as may be necessary to
reclaim the Support Structure within thirty (30) days of receipt of said written
notice. In the event the owner of the Support Structure fails to reclaim the
Support Structure within the thirty (30) day period, the owner of the Support
Structure shall be required to remove the same within six (6) months thereafter.
The [Jurisdiction] shall ensure and enforce removal by means of its existing
regulatory authority.
(C) Multiple Uses on a Single Parcel or Lot. Telecommunications Facilities and
Support Structures may be located on a parcel containing another principal use
ASET Essential Infrastructure for Information Delivery Appendices Page 84
on the same site or may be the principal use itself.
VIII. Telecommunications Facilities and Support Structures in Existence on the Date of
Adoption of this Ordinance.
(A) Telecommunications Facilities and Support Structures that were legally
permitted on or before the date this Ordinance was enacted shall be considered a
permitted and lawful use.
(B) The provisions of this Part are limited to those structures that do not meet
the height or setback requirements set forth in these regulations.
(C) Non-conforming Support Structures
(1) Non-conforming Support Structure. Ordinary Maintenance may
be performed on a Non-conforming Support Structure or
Telecommunications Facility.
(2) Collocation and/or Minor Modifications of Telecommunications
Facilities on an existing non-conforming Support Structure shall not be
construed as an expansion, enlargement or increase in intensity of a non-
conforming structure and/or use and shall be permitted through the
Administrative Approval process defined in Section IV.
(3) Major Modifications may be made to non-conforming Support
Structures utilizing the regulatory approval process defined in Section
V.
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Appendix H - Hopi Tribe Tower Colocation
Lease Agreement Sample
The Hopi Tribe in Northeast Arizona owns and operates several telecommunication towers in
support of Tribal communications needs including public safety, as well as for use by Hopi
Telecom Inc. (ILEC), federal agencies, and other communications providers. They have
provided this sample agreement for the tower at the Village of Hotevilla as a courtesy. The
primary Hopi Tribe contact for any follow up is Jerolyn Takala, Director, Management
Information Systems at 928-734-3254 or [email protected].
Hopi Tribe
Telecommunication Facility Use Agreement
THIS USE AGREEMENT (the “Agreement”) is dated this day of ,
2009 (“Execution Date”), by and between __________________ (“Tenant”), and The Hopi
Tribe (“Landlord”) (also referred to herein, collectively, as “Parties” or, individually, as
“Party”).
RECITALS:
WHEREAS, Landlord currently operates and maintains a communications shelter
(“Shelter”) and tower (“Tower”) at the Village of Hotevilla (collectively, “Facility” or
“Landlord’s Facility”) pursuant to a Lease of the land dated December 29, 2009 between the
Village of Hotevilla and the Tribe; and
WHEREAS, the Tenant desires access to the Facility to locate therein certain
communications equipment to provide ____________________[cellular, broadband, radio]
communications; and
WHEREAS, the Federal Communications Commission (“FCC”) has granted Tenant a
license for ___________________[cellular, wireless, broadband, radio telecommunications]
systems which will serve Landlord and citizens and visitors of the Hopi Reservation in Arizona;
and
WHEREAS, Tenant has applied for a permit from the Hopi Tribe Revenue Commission
authorizing Tenant to conduct business on the reservation and thereby co-locate Tenant’s
communications facilities at the Tower (the “Business Permit”); and
WHEREAS, Landlord and Tenant desire to enter into an agreement to ensure the proper
installation, operation and maintenance of antennas and other broadcasting hardware located at
the Facility; and
WHEREAS, Landlord has consulted with the Village of Hotevilla who owns the
property upon which the Facility sits, and the Village has approved this Facility Use Agreement
ASET Essential Infrastructure for Information Delivery Appendices Page 86
of the Premises to the Tenant; and
WHEREAS, the Parties wish to enter into this Agreement whereby Tenant will operate
and maintain cellular antennas, a cellular transmitter, internet broadband equipment, radio
antennas, and other associated equipment (“Equipment” or “Tenant’s Equipment”) at Landlord’s
Facility.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the Parties agree as follows:
1. The Premises. Upon the terms and conditions herein provided, Landlord hereby
grants to Tenant the rights to use Tower space sufficient for Tenant to install the Equipment on
Landlord’s Facility and sufficient ground space for Tenant to install Tenant’s electrical systems
and additional equipment to support the operation of the Equipment (the “Premises”). The
Equipment to be installed by Tenant at the Premises is listed on Exhibit A, attached and
incorporated herein. The Tower space to be used is described in Exhibit B, attached and
incorporated herein.
2. Term. The primary term of this Agreement shall be five (5) years and shall
commence on the Execution Date (“Term”). No later than sixty (60) days prior to the expiration
of the Term, the Parties shall meet to discuss the possible extension of the Agreement.
3. User Fee. During the Term of this Agreement, Tenant shall pay an annual fee to
Landlord and the Village of Hotevilla (“Village”), in the amount of ________________and
00/100 Dollars ($_________) respectively, which shall be paid on or before the Execution Date
and each anniversary of the Execution Date of this Agreement (“User Fee”). Tenant also agrees
to pay any applicable annual business license fees and other fees to the Hopi Tribe as may be
required. Exhibit C attached hereto and incorporated herein by this reference sets forth the
payment and disbursement schedule for the annual User Fees.
4. Use.
a. The Landlord grants permission to Tenant to occupy the Premises to
install, construct, operate, maintain, repair, remove and inspect Tenant’s antennas and
other equipment. Such occupancy shall be non-exclusive to the extent that the
Landlord and other tenants shall also have non-exclusive access to the Premises. The
antennas and equipment which Tenant may, at Tenant’s option, install, construct,
operate, maintain, repair, remove and inspect or have inspected on or at the Premises
shall include, but not be limited to, antennas, cables, wires, cellular base stations,
internet broadband antennas and equipment, microwave equipment, batteries,
generators, and other telecommunications and internet broadband equipment or
accessories hereinafter collectively referred to as “Tenant’s Equipment” (which is
described in Exhibit A, attached).
b. All uses of the Premises by Tenant shall be in conformance with applicable
federal, state and Hopi Tribal laws.
ASET Essential Infrastructure for Information Delivery Appendices Page 87
c. Landlord will cooperate and help Tenant obtain copies of as-built plans and other
documents indicating the exact locations on said Facility of such antennas, transmission lines and
equipment, their transmission frequencies and their transmitter output powers to the extent
approved by other such tenants or known by Landlord. Any copies of as-built plans or other
documents contemplated by this paragraph shall be provided by Landlord at Tenant’s sole
expense. No alteration thereafter shall be made by the Landlord or Tenant that would in any way
adversely affect or interfere with Tenant’s technical use of its communications equipment at the
Premises, without prior written notice as provided in Section 7(a). Landlord shall also prohibit
other tenants from adversely affecting or interfering with Tenant’s use of its communications
equipment at the Premises. Landlord may not use and Landlord shall prohibit other tenants from
using any portion of the Premises specifically to be used by Tenant under this Agreement.
5. Access. Tenant and its employees, agents, contractors, utility companies and
inspectors are hereby given and granted non-exclusive access for ingress and egress to the
Premises and over and across other lands owned and/or operated by Landlord and Village as may
be required for the purpose of parking and erection, placement, installation, inspection,
operation, repair, maintenance and removal of Tenant’s Equipment, all on a twenty-four (24)
hour per day basis (the “Access”). Tenant shall have the right at their own expense, but not the
obligation, to improve any access easement either by grading, graveling or paving it. Further,
both Landlord and Tenant and any utility company(ies) providing services to them are given and
granted the right of access to all areas of the Premises and other lands or rights-of-way owned by
Landlord as necessary for installation, maintenance and/or repair of such utility services. Both
Landlord and Tenant agree that all service vehicles shall remain on designated access roads only.
6. Landlord’s Duties.
a. To the extent required by current and/or future federal statutes, rules and
regulations, Landlord shall observe and satisfy all tower lighting requirements and maintain
records and provide notices, including notification to the Federal Aviation Administration, of any
failure of any repairs and correction of same during the Term of this Agreement and any
extensions thereof.
b. Landlord shall comply with all applicable laws, rules and regulations of federal,
state and tribal government authorities, including the Federal Aviation Administration, the
Federal Communications Commission, and building and electrical codes as have been
implemented or adopted by the Landlord, during the Term of this Agreement. Additionally,
Landlord will assist Tenant in obtaining a Business Permit from the Hopi Tribe Revenue
Commission.
c. During the Term of this Agreement and any extensions thereof, Landlord will not
subsequently give, convey or grant a lease or give other permission to any person or entity to
place antennas or other equipment at the Premises if such subsequent grant would in any way
adversely affect or interfere with Tenant’s use of its Equipment at the Premises. In the event of
any interference, Landlord shall cooperate to eliminate any interference within a reasonable
period of time not to exceed thirty (30) days.
7. Tenant’s Duties.
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a. Tenant shall provide frequencies and transmitter output powers to the Landlord in
order that the Landlord may ensure that all Tenant(s) uses are compatible and won’t interfere
with other uses of the Tower. Tenant shall give fifteen (15) days advance notice to Landlord
prior to adding frequencies or modifying transmitter output powers or adding hardware to the
Premises. Tenant shall not install any additional Equipment without the consent of the Landlord,
which shall not be unreasonably withheld. If such additional equipment is proposed to increase
the space usage of the Tenant the User Fees may be adjusted to compensate the Landlord for the
increased use, upon agreement of the parties.
b. Tenant shall comply with all applicable laws, rules and regulations of federal,
state and Hopi Tribal government authorities, including the Federal Aviation Administration, the
Federal Communications Commission, and state and local building and electrical codes as have
either been implemented or adopted by the Landlord.
8. Utilities.
a. Landlord shall provide utilities including but not limited to electricity and
telephone services to the Facility, such that the Tenant may have such services available to
operate its Equipment.
b. Tenant shall be solely responsible for and shall pay promptly all charges for
electricity, telephone and other utilities used or consumed by Tenant at the Premises. Tenant
shall have an electrical current meter installed at the Facility premises and the cost of such meter
and installation, maintenance and repair thereof shall be paid by the Tenant. Should the
Landlord be required to pay for such services on behalf of the Tenant, the Tenant will be
responsible for reimbursing the Landlord such expenses within thirty (30) days of receipt of
sufficient documentation and evidence indicating the percentage or amount attributable to Tenant
and paid by the Landlord. Failure of the Tenant to pay for such utilities will be a material breach
of the Agreement and cause for default.
9. Taxes, Fees and Assessments. Tenant shall be responsible for the payment of
any taxes, fees or assessments attributable solely to Tenant’s Equipment located at the Premises.
If any such tax, fee or assessment is paid by Landlord, Tenant shall reimburse Landlord for the
amount of any such tax payment within thirty (30) days of receipt of sufficient documentation
and evidence indicating the percentage or amount attributable to Tenant and paid by the
Landlord. Tenant’s failure to pay the taxes, fees, or assessments as indicated above will be a
material breach of the Agreement and cause for default.
10. Interference. The Parties recognize that intermodulation and electrical
interference may occur when more than one antenna or other use(s) occurs on the same tower.
The Parties wish to solve such interference problems by working together to eliminate the
problem while establishing a primary rule that the prior use takes precedence. Stated another
way, the first use has priority over subsequent uses. The Parties agree that any subsequent
installation or modification of equipment whether the equipment belongs to the Landlord, the
Tenant, or another third person (a “Subsequent Use”) shall not interfere with Tenant’s or
Landlord’s then-current operations. In the event that Landlord or Tenant experiences
ASET Essential Infrastructure for Information Delivery Appendices Page 89
interference caused by any Subsequent Use, that Party shall notify the other in writing of such
interference and Landlord shall, or shall cause the operator of the interfering Subsequent Use, to
power down its equipment and/or cease operations in order to correct and eliminate such
interference within seventy-two (72) hours after Landlord’s receipt of such notice. In the event
that Landlord is notified of any interference experienced by Tenant alleged to be caused by a
Subsequent Use on the Tower Site, Landlord shall be obligated to perform (or cause to be
performed) whatever actions are commercially reasonable and necessary, at no cost or expense to
Tenant, to eliminate such interference. If such Subsequent Use is unable to operate or modify its
operation to stop or reduce such interference within a reasonable period of time not to exceed
thirty (30) days, then Tenant may terminate this Agreement.
11. Damage to the Premises. If the Premises are damaged through no fault of
Tenant so as to render all or any part of the Premises substantially unusable for Tenant’s
intended use, the User Fee payment shall abate while Landlord, at its expense, promptly restores
the Premises to its previous condition or a mutually agreeable condition. Provided, however,
that in the event Landlord fails to repair the Premises within a reasonable time (a maximum of
thirty (30) days), Tenant shall have the right to terminate this Agreement in full or as it relates to
the property so damaged, without affecting its remedies permitted by law, equity, and/or this
Agreement. Tenant may also, after thirty (30) days notice and opportunity for the Landlord to
make the repairs, repair or perform the necessary maintenance and Tenant’s costs may be offset
against future User Fees. If the Premises, the easements, and/or any utility easement are
damaged for any reason other than Tenant’s negligence, and if the damage does not render the
Premises, the easements and/or any utility easement substantially unusable for Tenant’s intended
use, rent shall not abate, but Landlord, at Landlord’s expense, shall promptly restore the
Premises, the easements, and/or any utility easement to its previous condition or a mutually
agreeable condition. Tenant may, after thirty (30) days notice and opportunity for the Landlord
to make the repairs, repair or perform the necessary maintenance and Tenant’s costs may be
offset against future User Fees.
12. Hazardous Materials.
a. Definition. The term "Hazardous Materials" shall mean (i) those substances
included within the definitions of any one or more of the terms "hazardous materials,"
"hazardous wastes," "hazardous substances," "industrial wastes" and "toxic pollutants" as such
terms are defined under the Environmental Laws, or any of them, (ii) petroleum and petroleum
products (including without limitation crude oil and any fractions thereof), (iii) natural gas,
synthetic gas and any mixtures thereof,
(iv) asbestos and or any material which contains any hydrated mineral silicate, whether friable or
non-friable, (v) polychlorinated biphenyl ("PCB") or PCB-containing materials or fluids,
(vi) radon, urea formaldehyde, lead, lead in drinking water or lead-based paint, (vii) any
pathogen, toxin or other biological agent or condition, (viii) any other hazardous or radioactive
substance, material, pollutant, contaminant or waste, and (ix) any other substance with respect to
which any Environmental Law or governmental authority requires environmental investigation,
monitoring or remediation. The term "Environmental Laws" shall mean all federal, state and
local laws, statutes, guidelines, codes, ordinances and regulations, now or hereafter in effect, in
each case as amended or supplemented from time to time, including without limitation all
applicable judicial or administrative orders, applicable consent decrees and binding judgments
ASET Essential Infrastructure for Information Delivery Appendices Page 90
relating to the regulation and protection of human health, safety, the environment and natural
resources (including without limitation ambient air, surface, water, groundwater, wetlands, land
surface or subsurface strata, wildlife, aquatic species and vegetation), including without
limitation the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. §§ 9601 et seq.), the Hazardous Material Transportation Act, as
amended (49 U.S.C. §§ 1801 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act, as
amended (7 U.S.C. §§ 136 et seq.), the Resource Conservation and Recovery Act, as amended
(42 U.S. §§ 6901 et seq.), the Toxic Substance Control Act, as amended (42 U.S.C. §§ 7401 et
seq.), the Clean Air Act, as amended (42 U.S.C. §§ 7401 et seq.), the Federal Water Pollution
Control Act, as amended (33 U.S.C. §§ 1251 et seq.), the Occupational Safety and Health Act, as
amended (29 U.S.C. §§ 651 et seq.), the Safe Drinking Water Act, as amended (42 U.S.C. §§
300f et seq.), Environmental Protection Agency regulations pertaining to asbestos (including
without limitation 40 C.F.R. part 61, Subpart M), Environmental Protection Agency Guidelines
on Mold Remediation in Schools and Commercial Buildings, the United States Occupational
Safety and Health Administration regulations pertaining to Asbestos (including without
limitation 29 C.F.R. Sections 1910.1001 and 1926.58), and the rules and regulations promulgated
pursuant thereto regulating the storage, use and disposal of Hazardous Materials, and any state or
local counterpart or equivalent of any of the federal statutes, rules and regulations set forth
above.
b. Landlord's Representations and Indemnity. Landlord represents and warrants
that, to the best of Landlord’s knowledge, (A) the Premises have not been used for the use,
manufacturing, storage, discharge, release or disposal of Hazardous Materials, (B) neither the
Premises nor any part thereof are in breach of any Environmental Laws, (C) there are no
underground storage tanks located on or under the Premises, and (D) the Premises are free of any
Hazardous Materials that would trigger response or remedial action under any Environmental
Laws. If any such representation is in any manner breached by Landlord during the Term or any
renewal term of this Agreement, and if the breach gives rise to or results in liability (including
but not limited to a response action, remedial action or removal action) under any Environmental
Laws, or causes a significant effect on public health or safety, Landlord will promptly take any
and all remedial and removal actions as required by law to clean up the Premises and will
mitigate exposure to liability arising from, and keep the Premises free of any lien imposed
pursuant to, any Environmental Laws. In addition, Landlord shall indemnify, defend and hold
harmless Tenant and its officers and employees from and against any and all claims, costs,
liabilities and damages, including attorneys’ fees and costs, suffered or incurred by Tenant as a
result of any such breach or any matter, condition or state of fact involving Environmental Laws
or Hazardous Materials which existed on the Effective Date or arose during the term of this
Agreement and which failed to comply with the Environmental Laws.
c. Tenant's Representations and Indemnity. Tenant represents and warrants as
follows:
(i) Tenant has obtained or will obtain a Business Permit from the Hopi Tribe
Revenue Commission prior to installation of Tenant’s Equipment on and at
Landlord’s Facility.
(ii) Tenant’s use of the Premises will not generate and Tenant will not store or
ASET Essential Infrastructure for Information Delivery Appendices Page 91
dispose of on the Premises, nor transport to or over the Premises, any Hazardous
Materials. The Parties understand and agree that Tenant may use batteries as a
necessary part of providing power to its Tower equipment; however, Tenant
agrees not to store inoperative batteries at the Premises. Without limiting the
scope of the foregoing, Tenant will be solely responsible for and will defend,
indemnify and hold harmless the Village of Hotevilla and Landlord and its
officers and employees from and against any and all claims, costs, liabilities and
damages, including attorneys’ fees and costs, arising out of or in connection with
the cleanup or restoration of the Premises resulting from Tenant’s use, storage,
disposal or transportation of Hazardous Materials or violations of the
Environmental Laws. Tenant's remedial obligations under this paragraph shall be
coextensive with those of Landlord under paragraph 12.b.
d. Survival of Obligations. The Parties' respective obligations under paragraphs
12.a, 12.b and 12.c shall survive the termination of this Agreement.
13. Termination. The Parties shall have the right to terminate this Agreement at any
time upon any of the following events:
a. With or without cause, upon providing the other Party written notice at least two
years in advance.
b. On thirty (30) days written notice if (i) Tenant determines that the operation of
Tenant’s Equipment is no longer feasible at the Premises for technical or other reasons, or (ii) the
approval of any agency, board, court or other governmental authority necessary for the
construction and/or operation of Tenant’s Equipment, including without limitation a Business
Permit from the Hopi Tribe Revenue Commission, cannot be obtained or is revoked, or (iii)
Tenant determines the costs of obtaining or retaining such approval is prohibitive.
c. Upon termination of this Agreement, each Party will owe no further obligation to
the other, except for the indemnity obligations contained in Paragraph 12. Tenant shall be
responsible for removing all of Tenant’s Equipment from the Premises and restoring the areas
occupied by Tenant to as near as practicable to the original condition, save and except normal
wear and tear and acts beyond Tenant’s control. Tenant shall complete the removal and
restoration within ninety (90) days after the effective date of termination or expiration, and shall
bear all costs and liability risks associated with the removal.
14. Defaults and Remedies. Neither Party shall be considered in default under this
Agreement until there has been a failure to cure or resolve a default within thirty (30) days after
receipt of written notice of default.
15. Holding Over. If Tenant should remain in possession of the Premises after the
expiration of the Term of this Agreement, and the Parties have not extended the Agreement or
executed a new Agreement, then Tenant shall be deemed to be occupying the Premises as tenant-
at-sufferance on a month-to-month basis, subject to all the covenants and obligations of this
Agreement.
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16. Insurance. Tenant shall, at its expense, maintain in force during the term of this
Agreement a general liability insurance policy providing insurance coverage for Tenant’s use of
the Premises for wrongful death, bodily injury and property damage, with a combined single
limit of not less than Five Million Dollars ($5,000,000). This liability insurance policy shall
name the Village of Hotevilla and Landlord as an additional insured and shall require the
insurance company to provide Landlord of notice of cancellation or non-renewal of such policy.
Tenant may also purchase insurance to protect Tenant against casualty or other loss to Tenant’s
property. Likewise, the Village of Hotevilla and Landlord may at its expense purchase and
maintain insurance coverage protecting against the casualty or other loss or damage to the
Village of Hotevilla’s and/or Landlord’s property.
17. Hold Harmless. Tenant agrees to indemnify and save the Village of Hotevilla
and Landlord harmless from any and all liability, claims, lawsuits, and costs, including
reasonable attorneys’ fees, costs and expert witness’ fees, arising from or in any way relating to
Tenant’s use of the Premises or this Agreement. Likewise, Landlord agrees to indemnify and
save Tenant harmless from any and all liability, claims, lawsuits, and costs, including reasonable
attorneys’ fees, costs and expert witness’ fees, arising from or in any way relating to Landlord’s
or other tenants’ use of the Premises or this Agreement.
18. No Waiver. The failure of either Party to enforce any provision of this
Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently
enforce and compel strict compliance with every provision of this Agreement.
19. Governing Law and Jurisdiction. The construction, validity and performance of
this Agreement shall be governed by, and construed in accordance with, the laws of the Hopi
Tribe. The Parties agree that jurisdiction and venue for all claims shall lie in the Hopi Tribal
Court. Nothing herein shall constitute a waiver of the sovereign immunity of the Hopi Tribe or
of the Village of Hotevilla or of any of their agents or departments.
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20. Assignments. Neither Party may assign its rights or obligations under this
Agreement, except as specifically provided in this paragraph. Tenant may assign this Agreement
upon receipt of prior written approval of the Village of Hotevilla and Landlord, which approval
shall not be unreasonably withheld, but which shall be conditioned upon Landlord’s receipt from
Tenant of written proof that Tenant has received approval from the Hopi Tribe Revenue
Commission to the assignment of Tenant’s Business Permit to the proposed assignee.
21. Severability. If any portion of this Agreement shall be held to be invalid or
unenforceable for any reason, the remaining provisions shall continue to be valid and
enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but
that by limiting such provision, it would become valid and enforceable, then such provision shall
be deemed to be written, construed, and enforced as so limited.
22. Notices. Any notice required by this Agreement shall be in writing and shall be
delivered by hand or sent by United States Registered or Certified Mail, postage prepaid,
addressed as follows:
To the Landlord: Hopi Tribe
PO Box 123
Kykotsmovi, AZ 86039
With copies to: President, Village of Hotevilla
PO Box 706
Hotevilla, AZ 86030
Hopi Tribe
MIS Department
P.O. Box 123
Kykotsmovi, AZ 86039
To the Tenant: xxxxx
With a copy to: xxxxx
The Parties may change the address to which it receives notices by mailing a
change of address notice to the other Party and its attorney.
SIGNATURE PAGE FOLLOWS
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DATED AND SIGNED this ___ day of ________________, 2009.
LANDLORD: TENANT:
Hopi Tribe
Village of Hotevilla
President
______________________________
Approved As To Form:
EXHIBIT “A”
Tenant’s Equipment
[See attached plans - _]
EXHIBIT “B”
Tower Space Description
EXHIBIT “C”
User Fee Schedule
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Appendix I - Arizona Public Service (APS)
Pole Attachment Master License Agreement (MLA) Template
MASTER LICENSE AGREEMENT
BETWEEN
ARIZONA PUBLIC SERVICE COMPANY
AND
“LICENSEE”
FOR
COMMUNICATIONS ATTACHMENT TO APS POLES
AGREEMENT NO. XXXXXX
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TABLE OF CONTENTS:
1. PARTIES
2. RECITALS
3. ENTIRE AGREEMENT
4. SECTION HEADINGS AND DEFINITIONS
Agreement
Anchor(s)
Annual Attachment Fee
Application
APS Pole(s)
Cable
Joint Pole Participant
License
Make Ready Work
Memo
Other Licensee
Subscriber
5. SCOPE OF AGREEMENT
5.1. General
5.2. Other Rights Reserved
6. FEES AND CHARGES
6.1. General
6.2. Annual Attachment Fee
6.3. Financial Security
7. INSURANCE
8. INDEMNITY
9. LEGAL REQUIREMENTS
9.1. Laws and Regulations
9.2. Permits
9.3. Authorized Personnel
10. LIMITATION OF LIABILITY
11. RISK OF LOSS
12. GENERAL REQUIREMENTS
12.1. Licensing
12.2. Applicable Standards
12.2.1. Standards
12.2.2. Corrections
12.3. Unauthorized Attachment
12.4. Other Construction
13. ASSIGNMENT
14. TERM AND TERMINATION
14.1. Term
14.2. Termination at Will
14.3. Termination for Default
14.4. Removal of Cable
15. SERVICE OF NOTICE
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16. DISPUTES
16.1. General
16.2. Fee Disputes
16.3. Expenses
17. NON WAIVER
18. SEVERABILITY
19. GOVERNING LAW AND VENUE
20. EXECUTION AND EFFECTIVE DATE
APPENDICES
APPENDIX A - SCHEDULE OF FEES AND CHARGES
1. ANNUAL ATTACHMENT FEE
2. CHARGES
2.1. General
2.2. New Construction
2.3. Pole Replacements
2.4. Taxes
2.5. Unauthorized Attachments
3. TERMS OF PAYMENT
3.1. Annual Attachment Fee
3.2. Payment Date
3.3. Late Payment
APPENDIX B - INSURANCE
APPENDIX C - LICENSE PROCESS
1. LICENSE BY APPLICATION
1.1.1. Field Survey and Engineering by APS
1.1.2. Field Survey by Licensee, Engineering by APS
1.1.3. Field Survey by Licensee, Engineering by Contractor
1.1.4. Field Survey and Engineering by Contractor
1.4. Other Attachments
2. LICENSE BY MEMO
3. ANCHORS
4. INSTALLATION OF CABLE
5. INSPECTION OF CABLE
5.1. Final Inspection
5.2. Periodic Inspection
6. MODIFICATION OF CABLE
EXHIBITS
Exhibit A - APPLICATION FOR POLE LICENSE OR MODIFICATION TO EXISTING
CABLE
Exhibit B - NOTIFICATION OF TERMINATION OF POLE LICENSE BY LICENSEE
Exhibit C - MEMORANDUM FOR THE JOINT USE OF POLES AND/OR TRENCHES
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MASTER LICENSE AGREEMENT
BETWEEN
ARIZONA PUBLIC SERVICE COMPANY
AND
“LICENSEE”
FOR
COMMUNICATIONS ATTACHMENT TO APS POLES
1. PARTIES
The parties to this Master License Agreement are “LICENSEE” , a “STATE
OF INCORPATION HERE” corporation, hereinafter referred to as
"Licensee", and ARIZONA PUBLIC SERVICE COMPANY, an Arizona
corporation, hereinafter referred to as "APS".
2. RECITALS
This Agreement is made with reference to the following facts:
2.1. APS owns, utilizes, and maintains various utili ty poles throughout its
service area.
2.2. Licensee desires to install, maintain, and operate aerial Cable on
various APS distribution poles for the purpose of transmission and
distribution of communications services t o its Subscribers.
2.3. APS is will ing to authorize the installation of such Cable on its poles,
to the extent APS, in its sole discretion, may deem appropriate, and in
accordance with the terms and conditions of this Agreement.
3. ENTIRE AGREEMENT
This Agreement embodies the entire understanding between APS and
Licensee and shall supersede all prior contracts, representations,
negotiations, or letters pertaining to the subject matter of this Agreement,
whether written or oral. The parties shall not be bound by or be liable for
any statement, representation, promise, inducement, or understanding of any
kind not set forth herein, and this Agreement shall only be modified by an
amendment signed by both parties. This Agreement includes all documents
attached hereto and/or incorporated herein by reference.
4. SECTION HEADINGS AND DEFINITIONS
Section headings in this Agreement are for convenience only, and are not to
be construed to define, limit, expand, interpret , or amplify the provisions
hereof. When initial ly capital ized in this Agreement or amendments hereto,
the following words or phrases shall have the meanings specified:
Agreement
Shall mean this contract including all documents attached hereto and/or
incorporated herein by reference.
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Anchor(s)
Shall mean a metal rod and anchor owned by APS and to which APS
authorizes the attachment of Licensee's guy wire.
Annual Attachment Fee
Shall mean the fee set forth in Appendix A, SCHEDULE OF FEES AND
CHARGES, assessed annually for at tachment of Cable to each APS Pole.
Application
Shall be the document prepared by Licensee to request attachment of
Cable to existing APS poles or request modifications to existing cable.
Such Application will be written and issued substantially in the form set
forth in Exhibit A, APPLICATION FOR POLE LICENSE OR
MODIFICATION TO EXISTING CABLE. When properly completed
pursuant to Appendix C, LICENSE PROCESS, the Application shall serve
as authorization for the Licensee to attach its Cable to a specified pole or
modify its existing Cable on a specified pole.
APS Pole(s)
Shall mean distribution poles (carrying electric circuits of 21kV or less)
owned by APS for which APS authorizes the attachment of the Cable.
Cable
Shall mean the aerial cables, amplifiers, power supplies and associated
hardware required to support the aerial cable, attached to poles in the
communications space, utilized by Licensee for the transmission and
distribution of communications services to its Subscribers.
Joint Pole Participant
Shall mean any entity with whom APS has an agreement or arrangement to
reciprocally own and furnish poles for joint use and by which both parties
have agreed to a method of pro -rating the fully allocated costs of
ownership and maintenance of such joint use facilities.
License
Shall mean a revocable , nonexclusive written authorization to attach
Cable to APS Poles, which will be in the form of either an Application
approved by APS or by a fully executed Memo.
Make-Ready Work
Shall mean the work required, including engineering, field survey,
rearrangement and/or transfer of existing facilities of APS, replacement of
a pole, or any other modifications, to accommodate the Cable.
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Memo
Shall be the document used to notify Licensee, Other Licensee, and Joint
Pole Participant of proposed construction of new o r to existing poles
allowing said parties to respond and take necessary action. Such Memo(s)
will be written and issued substantially in the form set forth in Exhibit C,
SAMPLE MEMO. When properly completed pursuant to Appendix C,
LICENSE PROCESS, the Memo shall serve as authorization for the
Licensee to attach its Cable to a specified pole.
Other Licensee
Shall mean any entity, other than Licensee, whom APS has authorized
under any agreement or arrangement to attach its facil ities to the poles of
APS, for any purpose.
Subscriber
Shall mean a person, firm, or corporation who receives Licensee's
communications service.
5. SCOPE OF AGREEMENT
5.1. General
Subject to the provisions of this Agreement and the requirements of
sufficient capacity, safety, reliability and generally applicable
engineering purposes, APS agrees to issue to Licensee, from time to time
and on a non-discriminatory basis, a License authorizing the attachment
of Cable to various utility poles of APS, as designated by APS. It is
understood and agreed that the License(s) granted hereunder are only for
the attachment of aerial cables, amplifiers, power supplies and associated
hardware required to support the aerial cable that are used solely for the
transmission and distribution of communications serv ice.
5.2. Other Rights Reserved
5.2.1. No use, however extended, of APS Poles or payment of any fees
or charges required under this Agreement shall create or vest in
Licensee any ownership or property rights in such APS poles.
Licensee's right herein shall be and rem ain a revocable license.
Neither this Agreement nor any License granted hereunder shall
constitute an assignment of any of APS' rights to use the public
or private property at the location of APS Poles.
5.2.2. Nothing contained in this Agreement shall be constru ed to
compel APS to construct, retain, extend, place, or maintain any
pole or other facilities not needed for APS' own service
requirements.
5.2.3. Nothing contained in this Agreement shall be construed as a
limitation, restriction, or prohibition against APS wit h respect to
any agreement and/or arrangement which APS has previously
ASET Essential Infrastructure for Information Delivery Appendices Page 101
entered into or may in the future enter into with others not a
party to this Agreement, regarding the poles covered by this
Agreement. The rights of Licensee shall at all times be subje ct to
any such existing agreement and/or arrangement, and to any such
future Joint Pole Participant agreement and/or arrangement.
5.2.4. No License granted hereby, or in the future under this
Agreement shall extend to any APS Poles where the placement of
Cable would result in a termination of the rights granted to APS,
Other Licensee, and/or Joint Pole Participant by a property
owner, to occupy the property on which such poles are located.
If the existence of Cable on APS Poles would cause a
termination of the right of APS, Other Licensee, and/or Joint
Pole Participant, or any of them, to occupy such property,
Licensee shall immediately remove the Cable upon notification
by APS. If the Cable is not so removed, APS may perform
and/or have performed such removal wi thout liability on the part
of APS, and Licensee shall pay APS, Other Licensee, and/or
Joint Pole Participant or any or all of them, the cost thereof and
for all losses and damages that may result.
6. FEES AND CHARGES
6.1. General
Licensee shall pay APS the fees and charges as specified in and in
accordance with Appendix A, SCHEDULE OF FEES AND CHARGES.
Any changes to Appendix A, SCHEDULE OF FEES AND CHARGES,
shall be made by executing a new Appendix A, which shall be deemed to
be an amendment to this Agreement.
6.2. Annual Attachment Fee
An Annual Attachment Fee for each APS Pole shall be established for
each calendar year that this Agreement is in effect in accordance with
Appendix A, SCHEDULE OF FEES AND CHARGES.
6.3. Financial Security
6.3.1. If requested by APS, Licensee shall furnish a letter of credit or
other adequate evidence of financial security or assurance of
performance, in a form satisfactory to APS and in such amount
as APS from time to time may require, to guarantee the
performance of all of Licensee's obligations h ereunder. The
amount of the letter of credit or financial security shall not
operate as a l imitation upon the liabil ity of the Licensee
hereunder.
6.3.2. If the Licensee shall fai l to pay any sums demanded by APS as
due under this Agreement, APS may, at its opti on, and without
prior notice to or recourse by Licensee, apply any and all
ASET Essential Infrastructure for Information Delivery Appendices Page 102
amounts on deposit with APS or other forms of financial security
to payment of the sum due or, pursuant to the provisions of the
letter of credit, receive payment from Licensee's su rety or
sureties, whether or not Licensee contests its liability to pay
such sum, and whether or not APS exercises any other rights or
remedies it may have at law or under this Agreement. Any
deposit of money, let ter of credit or other evidence of financi al
security, if affected, shall, within thirty (30) days thereafter, be
restored to its previous level.
7. INSURANCE
7.1. Licensee shall provide and maintain the insurance coverages and shall
comply with the insurance requirements set forth in Appendix B,
INSURANCE.
7.2. APS reserves the right, from time to time in its sole discretion, to
review the insurance requirements set forth in Appendix B and to
require Licensee to make changes in such insurance or to provide
additional insurance or amounts of insurance coverage, as deemed
necessary by APS, based on circumstances as they exist at that time.
8. INDEMNITY:
8.1 Licensee shall indemnify, defend, and save harmless APS, Other
Licensee, and/or Joint Pole Participant and all of their employees,
agents, representatives, and insurers (each hereinafter referred to as
"Indemnitee") from any and all claims, demands, suits, actions,
proceedings, loss, cost, and damages of every kind and description,
including but not l imited to any attorneys' fees and/or litigation
expenses, which may be brought or made against or incurred by any
Indemnitee i) on account of loss of or damage to any property or for
injury to or death of any person, caused by, arising out of, or
contributed to, in whole or in part , by reasons of any alleged act,
omission, fault , mistake, or negligence of Licensee, its employees,
agents, representatives, or subcontractors, their employees, agents, or
representatives in connection with or incident to the performance of
this Agreement, or ii) in connection with any valid clai m made by any
Indemnitee against Licensee for enforcement of any indemnity under
this Agreement.
8.2 In all cases of death or injury to employees, officers or agents of ei ther
Licensee or its subcontractor, whether or not caused by Licensee, each
Indemnitee shall be defended and indemnified by Licensee for any and
all l iability except where such death or injury results from the sole
negligence of an Indemnitee.
8.3 Licensee shall defend each Indemnitee against all claims, demands,
suits, actions, and proceedings fo r which Licensee has, or potentially
has, indemnification responsibility under this Section 8. Each
Indemnitee shall have the right, at its sole cost and discretion, to
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provide for its own defense to whatever extent such Indemnitee deems
necessary to protect its own interest or that of other Indemnitees and
Licensee shall cooperate fully with such Indemnitee in any such
participation.
8.4 The indemnification obligations of Licensee contained in this Section 8
are not limited in any respect by the insurance co verage required under
Section 7.
9. LEGAL REQUIREMENTS
9.1 Laws and Regulations
Licensee shall at all times observe and comply with all applicable laws,
ordinances, statutes, rules or regulations which in any manner relate to
the rights and obligations of Licensee under this Agreement.
9.2 Permits
Licensee shall obtain from the appropriate public and/or private authority
any required franchises, authorizations, l icenses, or permits to construct ,
operate, and/or maintain the Cable on public and private property at the
location of APS Poles to which Licensee is at tached. Licensee shall
submit to APS such evidence of compliance with the foregoing
requirements, as APS may require.
9.3 Authorized Personnel
Only "Authorized Persons", as defined in Arizona Revised Statutes
Section 40-360.41, shall install , maintain, repair, transfer, or otherwise
perform any work related to the Cable under this Agreement.
10.LIMITATION OF LIABILITY
APS shall not be liable to Licensee or any Subscribers for any incidental,
indirect, or consequential loss or damage arising in any manner out of the use
of APS Poles or APS' acts or omissions in connection therewith, and
Licensee shall indemnify and save harmless APS from and against any and
all claims, demands, causes of action, cost, and fees or expense s of whatever
kind resulting from any such loss or damage. APS reserves to itself, its
successors and assigns, the right to locate and maintain its poles and to
operate its facilities in such a manner as will best enable APS to fulfill its
service requirements without liability to Licensee or any Subscribers.
11.RISK OF LOSS
11.1 Licensee shall exercise reasonable care to avoid damaging the facili ties of
APS, and of Other Licensee, and/or Joint Pole Participant attached to APS
Poles. Licensee assumes all responsibili ty for al l loss or damage caused
by Licensee's employees, agents, or contractors. Licensee shall make a
ASET Essential Infrastructure for Information Delivery Appendices Page 104
prompt report to APS, and to Other Licensee, and/or to Joint Pole
Participant, as appropriate, of the occurrence of any such damage and
shall reimburse the respective parties for all costs incurred in making
repairs.
11.2 APS shall exercise reasonable care to avoid damaging the Cable; shall
make a prompt report to the Licensee of the occurrence of any such
damage caused by APS' employees, agents, or contr actors; and shall
reimburse Licensee for all costs incurred by Licensee to repair such
damaged facilities. All costs incurred by Licensee for repair of such
damaged facilities shall be supported by reasonable documentation.
12.GENERAL REQUIREMENTS
12.1 Licensing
12.1.1. Licensee shall not at tach any Cable to any of APS' poles or
Anchors without first having been issued a License pursuant to
Appendix C, LICENSE PROCESS. Any changes to Appendix C,
LICENSE PROCESS, shall be made by the execution of a new
Appendix C, which shall be deemed an amendment to this
Agreement. All Licenses shall be evidenced by a completed and
approved written request substantially in the form of Exhibit A,
APPLICATION FOR POLE LICENSE OR MODIFICATION TO
EXISTING CABLE, or Exhibit C, SAMPLE MEMO. Approval
for such License shall be conditioned upon the payment for and
completion of all Make-Ready Work.
12.1.2. Licensee shall at all times bear full responsibili ty for the
integrity and safety of i ts system. APS reserves the right to
review Licensee's engineering plans and completed construction.
Any such review by APS shall not relieve Licensee from or be
deemed a waiver of APS' right to insist on strict compliance of
Licensee's obligations under this Agreement, including Section
12.2 APPLICABLE STANDARDS. APS shall not, however, be
obligated to review any engineering plans or completed
construction.
12.2 Applicable Standards
12.2.1 Standards
Licensee shall construct , install, operate, and maintain the Cable
in accordance with the requirements and stand ards of the latest
editions of the National Electrical Safety Code (NESC), US
WEST Manual of Construction Procedures (Blue Book) the
Occupational Safety and Health Act (OSHA), the rules and
regulations of any governing authority having jurisdiction over
the subject matter of this Agreement, any requirements APS may
from time to t ime prescribe, and this Agreement. Where a
difference in standards may exist, the more stringent shall apply.
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12.2.2 Corrections
If any part of the Cable is placed or maintained, o r causes the
facili ties of others to be in violation of the standards prescribed
in Section 12.2.1 and Licensee has not corrected the violation
within fifteen (15) days from the date of the Memo or other
writ ten notice thereof, APS may, in addit ion to any other
remedies it may have hereunder, remove or have removed the
Cable from any or all of APS Poles or perform or have
performed such other work and take such other action in
connection with the Cable that APS deems necessary or
advisable to comply with the applicable standards, at Licensee's
cost and expense and without any l iability on the part of APS;
provided, however, that when in the sole judgment of APS such a
condition may endanger the safety of the employees of APS,
Other Licensee, and/or Joint Pol e Participant or other third
parties, or interfere with the performance of any service
obligations of APS, Other Licensee, and/or Joint Pole
Participant, APS may take such action without prior notice to
Licensee.
12.3 Unauthorized Attachment
12.3.1. If any of the Cable shall be found attached to poles or anchors of
APS for which a License has not been issued, APS may, in addition
to any other rights or remedies provided under this Agreement or by
law, impose a charge and require Licensee to submit in writing,
within fifteen (15) days after the date of writ ten notification from
APS of the unauthorized attachment, an Application in accordance
with Appendix C. If such application is not received by APS within
the specified time period, Licensee shall remove or have removed its
unauthorized attachment within fifteen (15) days of the final date for
submitt ing the required applications, or APS may remove such
unauthorized attachment without liabil ity, and the expense of such
removal shall be paid by Licensee.
12.3.2. The charge to be imposed for any unauthorized pole or anchor
attachment shall be as prescribed in Appendix A. All cost and
expense incurred by APS in connection with such unauthorized
attachment shall be paid by Licensee whether or not Licensee is
permitted to continue the attachment.
12.3.3. No act or failure to act by APS with regard to said unlicensed
use shall be deemed a ratification or the l icensing of the
unlicensed use; and if any license should be subsequently issued,
said license shall not operate retroactively o r constitute a waiver
by APS of any of its rights or privileges under this Agreement or
otherwise; provided however, that Licensee shall be subject to
all l iabilities, obligations, and responsibilities of this Agreement
in regard to said unauthorized use f rom its inception.
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12.4 Other Construction
12.4.1. If Licensee should require Cable in a location upon any public
thoroughfare or other public or private property other than the
location(s) available through the use of the pole(s) of APS, Licensee
shall advise APS of such pole-facil ity requirements. If APS intends
to erect pole facilit ies in such location(s) to meet its own service
requirements, or if APS is willing to erect the required pole facilities
for the benefit of Licensee, it shall so notify Licensee, an d Licensee
may make application for a License pursuant to Appendix C,
LICENSE PROCESS, to install Cable thereon.
12.4.2. Licensee shall pay APS a share of the cost of erecting such new
pole facilit ies, according to the relative benefits to be derived by
Licensee, as determined by mutual agreement prior to the
construction of such facili ties. All such poles, however, shall be
the property of APS, and Licensee's use thereof shall be
determined in accordance with this Agreement.
12.4.3. If APS, to meet its own service requir ements, should desire to
attach its facilit ies to any pole(s) of Licensee, APS may make
application with Licensee for such license, under terms and
conditions similar to this Agreement and for an attachment fee
mutually agreed to by both parties, and Licen see shall issue a
license and provide APS with space for attachment of its
facili ties on any such pole(s) of Licensee.
13.ASSIGNMENT
Licensee shall not assign or transfer the rights, nor delegate the duties, or
otherwise dispose of any right, title, or intere st in all or any part of this
Agreement without the prior written consent of APS. No such consent
granted by APS shall be effective until Licensee's successor or assignee has
agreed to assume Licensee's responsibili ties under this Agreement and such
assignment has been consented to in writing by APS; provided, however,
such assignment shall not relieve Licensee of i ts responsibilities under this
Agreement. Licensee shall not sell , assign or convey any part of the Cable
without the prior written consent of APS.
14.TERM AND TERMINATION
14.1 Term
This Agreement shall be effective as of the date specified in Section 20,
EXECUTION AND EFFECTIVE DATE, subject to approval by any
applicable regulatory authority, if necessary, and shall continue in effect
for a period of one (l) year and from year to year thereafter until
terminated by either party or as otherwise provided in this Agreement.
14.2 Termination at Will
Either party may terminate this Agreement or terminate any License
ASET Essential Infrastructure for Information Delivery Appendices Page 107
issued hereunder by giving the other party at least sixty (60) days prior
writ ten notice thereof. All notices of termination of a License by
Licensee shall utilize the form as set forth in Exhibit B, NOTIFICATION
OF TERMINATION OF POLE LICENSE BY LICENSEE, as it may be
revised from time to t ime.
14.3 Termination for Default
14.3.1. If Licensee fails to comply with any of the terms and conditions
of this Agreement or defaults in any of its obligations under this
Agreement, and fails within sixty (60) days after the date of writ ten
notice from APS to correct such non-compliance or default, APS may,
at its option and in addition to any other rights or remedies it may
have, immediately terminate this Agreement and all Licenses issued
pursuant hereto, under which such non -compliance or default has
occurred.
14.3.2. Notwithstanding the provisions of Section 14.3.1, APS may
immediately terminate this Agreement, or any License issued
hereunder, without prior notice to Licensee, for any defaults by
Licensee of the following sections of this Agreement: Section
6.3, Financial Security, Section 7, INSURANCE, Section 9,
LEGAL REQUIREMENTS, Section 12.2, Applicable Standards,
and Section 16, DISPUTES.
14.3.3. In the event of such termination for default, APS may take
possession of all of the Cable affected thereby, subject to the
rights of prior lien holders. At its discretion APS may retain the
Cable for its use, the use of others, or may sell or otherwise
dispose of such Cable for the purpose of securing payment of all
fees, charges, and expenses of such termination and collect ions
including, but not limited to, attorney's fees and/or litigation
expenses. Nothing contained herein, however, shall be
construed to preclude APS from pursuing any other remedy
provided by law for the collection of any indebtedness or
enforcement of any obligation or covenant under this Agreement.
14.4 Removal of Cable
14.4.1. In the event of termination of this Agreement or any License
issued hereunder for other than default , Licensee shall remove its
Cable from APS Poles within sixty (60) days from the dat e of
termination; provided, however, that Licensee shall be liable for and
pay all applicable fees and charges to APS until the Cable are
actually removed from APS Poles. Licensee shall advise APS in
writ ing as to the date on which the removal of the Cabl e from each
APS Pole has been completed.
14.4.2. If Licensee fails to remove the Cable in compliance with Section
14.4.1, APS may take possession of all of the Cable affected
thereby. At its discretion APS may retain the Cable for its use,
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the use of others or may remove, sell or otherwise dispose of
such Cable. Any removal of such facilit ies will be at Licensee's
expense and without any liabili ty on the part of APS.
14.4.3. Licensee's Liabilities and Obligations - Termination of this
Agreement or any License issued hereunder, in whole or in part,
for any reason shall not affect Licensee's liabilities and
obligations under this Agreement prior to the effective date of
such termination and removal of the Cable.
15.SERVICE OF NOTICE
Any notice required or provided for hereunde r shall be in writing and shall
be delivered personally to the corporate representatives of APS and Licensee
designated below, or shall be mailed thereto by certified mail, postage
prepaid, return receipt requested. Notice shall be effective on the date
delivered.
To APS: To Licensee:
Attn: Colin Barleycorn
Arizona Public Service Co. Contact Information Here
PO Box 53999 MS 9505
Phoenix, AZ 85072-3999
16.DISPUTES
16.1 General
Any controversy or claim (except any claim for damages because of
bodily injury including death at any time resulting therefrom, sustained by
any person or persons, and except any claim for damages because of
damage to or destruction of property) arising out of, or relating to this
Agreement or its breach which may arise between Licensee and APS, and
which is not resolved by the authorized representatives of the parties,
shall be noticed in writing by the complaining party as provided in
Section 15, SERVICE OF NOTICE. Such controversy or claim shall
subsequently be reviewed and d iscussed between the APS Law
Department, or its designee, and Licensee as a condition precedent to any
litigation or submittal to any other authority.
16.2 Fee Disputes
In addition to the requirements of Section 16.1, any controversy or claim
regarding the fees and charges established under this Agreement shall be
settled by arbitration in Phoenix, Arizona, in accordance with the rules
then in effect of the American Arbitration Association, and judgment upon
the award rendered by the arbitrator(s) may be en tered in any court having
jurisdiction thereof. Licensee shall continue payment of all fees and
charges when due and performance of all obligations under this
ASET Essential Infrastructure for Information Delivery Appendices Page 109
Agreement, during any such period of controversy or claim.
16.3 Expenses
The prevailing party in any controversy or claim between APS and
Licensee shall be entitled to recover from the other party, in addition to
any other recovery awarded, any reasonable attorney's fees, li tigation
expenses, and/or arbitration expenses incurred by such prevailing pa rty in
connection with or incident to the controversy or claim; provided,
however, that in the event APS brings an action for declaratory relief to
resolve a dispute involving Licensee, APS shall be entitled to recover its
attorney's fees and li tigation expenses.
17.NON-WAIVER
17.1. The failure of APS to enforce or insist upon strict compliance with any
of the terms and conditions of this Agreement or to exercise or delay
the exercise of any rights or remedies provided by this Agreement or
by law shall not release Licensee from any of its duties or obligations
imposed by law or by this Agreement and shall not be deemed a
general waiver or relinquishment of any rights or remedies provided
APS by this Agreement or by law, but the same shall be and remain at
all t imes in full force and effect .
17.2. Nothing contained in this Agreement shall be construed in any way to
fulfill , limit , restrict , substitute, or waive, in whole or in part, any of
Licensee's obligations under Article 6.4, HIGH VOLTAGE POWER
LINES AND SAFETY RESTRICT IONS, of Section 1, Title 40, Chapter
2 of the Arizona Revised Statutes, or any other laws, regulations,
codes, standards, or industry practices pertaining to activities near
overhead electric lines.
18.SEVERABILITY
Should any provision of this Agreement be d etermined to be unenforceable or
illegal, then said provisions shall be severed from this Agreement and the
remainder shall remain in full force and effect.
19.GOVERNING LAW AND VENUE
This Agreement shall be interpreted in accordance with the substantive laws
of the State of Arizona. Any action at law or judicial proceeding shall be
instituted only in the state or federal courts of the State of Arizona.
20.EXECUTION AND EFFECTIVE DATE
This Agreement, No. , has been executed by the duly authorized
representatives of the parties and shall be effective as of the day of
, 2011.
ARIZONA PUBLIC SERVICE COMPANY
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SIGNATURE:
NAME: Colin Barleycorn
TITLE: Joint Use Supervisor
"APS"
“LICENSEE”
SIGNATURE:
NAME:
TITLE:
"Licensee"
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APPENDIX A
SCHEDULE OF FEES AND CHARGES
MASTER LICENSE AGREEMENT
FOR
COMMUNICATIONS ATTACHMENT TO APS POLES
1. AGREEMENT FEE
1.1. In consideration of Licensee's compliance with the provisions of this
Agreement, the payment of a one time agreement fee of FIVE
HUNDRED DOLLARS ($500.00).
2. ANNUAL ATTACHMENT FEE
2.1. The Annual Attachment Fee for calendar year INSERT YEAR HERE
shall be $FEE HERE per pole.
2.2. The annual Attachment Fee shall be increased effective January 1 of
each year. The amount of the increase will be calculated uti lizing the
average of the monthly Consumer Price Index figures for the preceding
calendar year.
2.2.1. The annual February release of the Economic Indicators
Prepared for the Joint Economic Committee by the Council of
Economic Advisers and specifically the index category "All
Items, Not Seasonally Adjusted (NSA)" shall be used in
computing each of these Annual Attachment Fee increases.
2.2.2. The percentage of any increase in the annual average index
numbers will be applied to the previous year 's Annual
Attachment Fee to determine the current year 's Annual
Attachment Fee.
2.2.3. APS will provide the Licensee sixty (60) days notice of the
increased Annual Attachment Fee prior to the issue of an annual
billing.
2.3. For the init ial calendar year of each new License, the Annual
Attachment Fee shall be assessed at one -half the annual rate set forth
above, as of the effective date of the License, and shall not be
refundable due to early termination of the License.
2.4. The total Annual Attachment Fees assessed as of the beginning of each
calendar year shall be based upon the total number of pole attachments
on record, times the Annual Attachment Fee effective for that calendar
year. The total number of pole attachments on record shall be t he
number of pole attachments for which a License has been issued, less
the number of pole attachments whose License has been terminated, as
of the last day of the previous calendar year.
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3. CHARGES
3.1 General
Licensee shall advance funds to APS for all fiel d surveys, engineering,
and other Make-Ready Work, including, without l imitation, inspections,
supervision, removal, rearrangement, transfer, or other modifications of
Licensee's facili ties and any other work performed for Licensee, based
upon the full cost and expense to APS for performing such work or for
having such work performed. Licensee shall advance funds to APS for
other construction as mutually agreed, pursuant to Section 12.4.2.
3.2 New Construction
When APS plans to install a pole for its use, and the Licensee requests a
larger pole be installed to accommodate i ts facilities, Licensee shall be
responsible for the difference in price between the original pole and the
pole requested.
3.3 Pole Replacements
Licensee shall reimburse APS for replacement of any pole(s) required to
accommodate Licensee's attachment(s), based on APS' fully installed
costs less salvage value of the replaced pole(s), if any, plus the cost of
removal of the existing pole(s).
3.4 Taxes
Licensee shall pay any and all sales tax , transaction privilege tax or other
tax assessed or assessable as the result of its occupancy or use of APS
Poles, including any such tax payable by APS, when due.
3.5 Unauthorized Attachments
Licensee shall pay a one-time fee of $100 per pole or anchor t o which
Licensee has attached its Cable without the prior written authorization of
APS.
4. TERMS OF PAYMENT
4.1 Annual Attachment Fee
The initial Annual Attachment Fee shall be payable as of the effective
date of the License, as appropriate. Thereafter, the Annual Attachment
Fee shall be payable in advance, as of the first day of January of the
applicable year. Annual Attachment Fees are not fully or partially
refundable due to an early termination of a License.
4.2 Payment Date
All fees and charges, except taxes, shall be paid within thirty (30) days
after the date of an invoice therefor or by any payment date indicated in
the invoice.
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4.3 Late Payment
Amounts past due shall incur a late charge (which is subject to change
from time to t ime at APS' discretion) equal to the prime rate (as reported
by the Wall Street Journal) plus three percent (3%) (per annum), on the
first day of the month in which the unpaid amount became delinquent.
Payment or acceptance of such late charge, however, shall not constitute a
waiver of any rights or remedies granted hereunder.
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APPENDIX B
INSURANCE
MASTER LICENSE AGREEMENT
FOR
COMMUNICATIONS ATTACHMENT TO APS POLES
1. Licensee shall provide and maintain, during the term of and until all
obligations under this Master License Agre ement are satisfied, with forms
and insurers acceptable to APS, the following insurance coverages:
1.1. Worker's Compensation insurance to cover obligations imposed by
federal and state statutes having jurisdiction of i ts employees engaged
in the performance of the work, and Employer's Liability insurance
with a minimum limit of FIVE HUNDRED THOUSAND DOLLARS
($500,000).
1.2. Commercial General Liability insurance with a minimum combined
single limit of FIVE MILLION DOLLARS ($5,000,000) each
occurrence. The policy shall include coverage for bodily injury
liability, broad form property damage liability (including Completed
Operations), personal injury liability (including coverage for
contractual and employee acts), blanket contractual and products and
completed operat ions. Said policy shall contain a severability of
interest’s provision. On "occurrence" form policies the products and
completed operation coverage shall extend for two (2) years past
termination of the Agreement.
1.3. Comprehensive Automobile Liability insu rance with a combined single
limit for bodily injury and property damage of not less than ONE
MILLION DOLLARS ($1,000,000) each occurrence with respect to
Licensee's vehicles whether owned, hired, or non -owned, assigned to
or used in connection with this Agreement.
1.4. If applicable, Aircraft Public Liability insurance covering fixed wing
and rotorcraft aircraft whether owned, hired, or non -owned with a
combined single limit for bodily injury and property damage of not
less than TWO MILLION DOLLARS ($2,000,000) , including passenger
liability coverage.
2. The policies required by Sections 1.2, 1.3, and 1.4 herein shall be endorsed
to include APS, its officers and employees as additional insureds and shall
stipulate that the insurance afforded for APS, its officers a nd employees
shall be primary insurance and that any insurance carried by APS, its officers
or employees shall be excess and not contributory insurance.
3. Licensee and its insurers providing the required coverages shall waive all
rights of recovery against APS and their directors, officers, employees, and
agents.
4. Prior to the issuance of any License under this Agreement, Licensee shall
ASET Essential Infrastructure for Information Delivery Appendices Page 115
furnish APS with Certificates of Insurance as evidence that policies
providing the required coverages, conditions, and l imits are in full force and
effect. The certificates shall identify the Agreement number and provide that
not less than thirty (30) days' advance notice of cancellation, termination, or
alteration shall be sent directly to APS addressed as follows:
Attn: Joint Use
Arizona Public Service Company
PO Box 53999 - Station 9505
Phoenix, AZ 85072-3999
5. APS reserves the right to request and receive cert ified copies of any or all of
the above policies and/or endorsements.
6. APS shall not, however, be obligated to review any of Licensee's certificates
of insurance, insurance policies, and/or endorsements or to advise Licensee
of any deficiencies in such documents, and any receipt of copies or review by
APS of such documents shall not relieve Licensee from or be deemed a
waiver of APS' right to insist on strict fulfillment of Licensee's obligations
under this Appendix B.
7. The stipulation of insurance coverages in this Appendix B shall not be
construed to limit or waive any liabilities or other obligations of Licensee to
APS, or any other parties, in connection with this Agreement.
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APPENDIX C
LICENSE PROCESS
MASTER LICENSE AGREEMENT
FOR
COMMUNICATIONS ATTACHMENT TO APS POLES
All Licenses shall be evidenced by a written request, completed and approved
pursuant to the following directions, substantially in the form of Exhibit A,
APPLICATION FOR POLE LICENSE OR MODIFICATION TO EXISTING
CABLE, or Exhibit C, SAMPLE MEMO.
1. LICENSE BY APPLICATION:
1.1. When an Application is submitted by Licensee, a field survey shall be
required, at Licensee’s expense, for each pole for which attachment or
modification is requested. Licensee shall be responsible for field
survey costs, regardless of how the survey is performed or whether a
license is issued or attachments are installed. Applications whic h have
not been addressed for field survey within 180 days shall be subject to
review and may require resubmittal . At APS’ sole discretion, the field
survey shall be performed as described in either 1.1.1, 1.1.2, 1.1.3 or
1.1.4. APS will verbally notify Licensee of which method described
below shall be used.
Field Survey and Engineering by APS
The field survey shall be performed jointly by representatives of APS
and Licensee. If appropriate, a representative of the Other
Licensee(s) and/or Joint Pole Par ticipant(s) shall also be present
during this field survey. Licensee shall furnish to APS data
necessary to perform the field survey, in a format specified by APS
and according to the standards of accuracy and completeness
satisfactory to APS.
1.1.1.1. APS shall notify Licensee in writing of the estimated cost for
the proposed construction work required to accommodate any
of Licensee’s attachment requests, specifying work and
associated cost at each pole location. Licensee shall have
thirty (30) days to determine if, at each pole location, APS
should proceed with the detailed engineering. Licensee will be
responsible for all engineering costs expended by APS as a
direct result of work approved by Licensee on this estimate.
1.1.1.2. After response to the estimate is receive d, APS will complete
the engineering for the approved work and submit an invoice to
Licensee, payable in accordance with Appendix A, SCHEDULE
OF FEES AND CHARGES. Costs reflected on the invoice will
include costs for field surveys and engineering performe d by
APS and for proposed construction.
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1.1.1.3. If Licensee delays approval of the estimate or payment of the
invoice, and said delay causes the time elapsed from the date
of the initial field survey to exceed 120 days, a second field
survey may be required, at Licensee’s expense, to determine
any changes in the field that would impact Make -Ready Work
requirements.
1.1.1.4. If during the course of this process, APS receives a request
from another licensee for attachment to the same pole or poles
APS will send writ ten notifi cation of the additional at tachment
request to Licensee. Licensee shall have 15 days from the date
of the notification to submit payment for either the invoice for
Make-Ready work, if issued, or for the estimated charges, if
prior to billing.
1.1.2 Field Survey by Licensee, Engineering by APS
The field survey shall be performed by Licensee. Licensee shall take
measurements at each pole and midspan, noting condition of poles
and any other pertinent information. Licensee will notify APS if the
poles meet all requirements. If any poles or midspans do not meet
clearance, wind loading or any requirements, Licensee will provide
the measurements and any calculations to APS. The steps outl ined in
Sections 1.1.1.1 through 1.1.1.4 will then be followed based on t he
information provided by Licensee.
1.1.3 Field Survey by Licensee, Engineering by Contractor
The field survey shall be performed by Licensee. Licensee shall take
measurements at each pole and midspan, noting condition of poles
and any other pertinent in formation. Licensee will notify APS if the
poles meet all requirements. If any poles or midspans do not meet
clearance, wind loading or any other requirements, Licensee will
provide the measurements and any calculations to an APS approved
engineering firm. The engineering firm will provide a preliminary
estimate to Licensee and a determination will be made by Licensee at
each pole location as to whether the engineering firm should proceed
with detailed engineering. The engineering firm will prepare job
sketches and material lists in a format specified by APS and
according to the standards of accuracy and completeness satisfactory
to APS. Licensee will be responsible for all costs of the field survey
and associated engineering. APS will submit an invoic e for the
construction Make-Ready Work to Licensee, payable in accordance
with Appendix A, SCHEDULE OF FEES AND CHARGES. Sections
1.1.1.3 and 1.1.1.4 shall then apply.
1.1.4 Field Survey and Engineering by Contractor
The field survey shall be performed by an APS approved engineering
firm contracted by Licensee. The engineering firm shall take
measurements at each pole and midspan, noting condition of poles
and any other pertinent information. The engineering firm will
determine if the pole(s) meet all requirements and Licensee will
ASET Essential Infrastructure for Information Delivery Appendices Page 118
notify APS of the results of the survey. If any poles or midspans do
not meet clearance, wind loading or any other requirements, then, the
engineering firm will provide a preliminary estimate to Licensee and
a determination will be made by Licensee at each pole location as to
whether the engineering firm should proceed with detailed
engineering. The engineering firm will prepare job sketches and
material lists in a format specified by APS and according to the
standards of accuracy and completeness satisfactory to APS.
Licensee will provide the job sketches to APS. Licensee will be
responsible for all costs of the field survey and associated
engineering. APS will submit an invoice for the construction Make -
Ready Work to Licensee, payable in accordance with Appendix A,
SCHEDULE OF FEES AND CHARGES. Sections 1.1.1.3 and 1.1.1.4
shall then apply.
1.2. Any required construction Make-Ready Work shall be performed by
APS following receipt of Licensee’s payment for such Make -Ready
Work, in accordance with APS’ normal work load schedule. APS shall
provide Licensee with an estimated schedule of the Make -Ready Work.
However, APS may adjust the schedule at any time to satisfy its own
service requirements, and APS shall not be liable to Lic ensee or
Subscriber for any delays caused by such adjustment. Licensee shall
also notify Other Licensee and/or Joint Pole Participant attached to
said poles and pay for any expense incurred by it or them in
transferring or rearranging their facil ities to accommodate the Cable.
Licensee shall not be entitled to reimbursement of any amounts paid to
APS for pole replacements or for rearrangement of facilities on APS
Poles by reason of the use by APS, Other Licensee and/or a Joint Pole
Participant of any addi tional capacity resulting from such replacement
or rearrangement.
1.3. APS will perform construction Make-Ready Work that may be required
on APS’ facilities attached to poles owned by others and any such
construction Make-Ready Work shall be treated in the same manner
with regard to billing, etc., as construction Make -Ready Work on poles
owned by APS.
1.4 Other Attachments
In the event APS receives a request for pole attachment from a third party
for attachment to poles of APS for which Licensee submits, or has
pending, an Application, but for which APS has not received payment
from Licensee of the Annual Attachment Fees and Make -Ready charges,
Licensee shall jointly participate with APS and the third party in, and
shall pay its pro-rata share of, any Make-Ready Work as follows:
1.4.1. For applications received by APS on the same workday (Monday
through Friday, except holidays), each applicant shall jointly
participate in, and pay an equal share of the cost of, the field survey
ASET Essential Infrastructure for Information Delivery Appendices Page 119
and other Make-Ready Work.
1.4.2. For applications received by APS prior to the performance of the
field survey, each applicant shall jointly participate in the field
survey and other Make-Ready Work, and pay an equal share of
the cost of the field survey; the first applicant shall pay only
those costs for the other Make-Ready Work which would be
applicable for its attachment(s), and the second applicant(s)
shall pay the additional cost of other Make -Ready Work required
for such additional attachment(s).
1.4.3. For applications received by APS after completion o f the field
survey, but prior to receipt by APS of full payment of the costs
for the Make-Ready Work from the first applicant, the first
applicant shall pay only those costs for the field survey and
other Make-Ready Work which would be applicable for its
attachments, and the second applicant(s) shall pay the additional
cost of a field survey and other Make-Ready Work required for
such additional at tachment(s).
1.4.4. If the other Make-Ready Work to be performed for the first
applicant, pursuant to the above two pa ragraphs, results in the
availabili ty of pole-space for the second applicant(s), each
applicant shall pay an equal share of the cost of such other
Make-Ready Work, and APS shall reimburse Licensee for any
excess amount paid to APS.
2. LICENSE BY MEMO
2.1. APS will notify Licensee of new pole installations, replacements,
removals and modifications with a Memo which will generally specify
the location of the pole(s) and the nature of the construction work to
be done. Upon completion of the Memo process, and upon com pletion
of APS' construction work, the Memo shall serve as evidence of the
Licensee's authorization to attach to an APS Pole.
2.2. Licensee must reply to the Memo provided by APS within thirty (30)
calendar days of the transmittal date. The response to each me mo shall
include any necessary information such as, but not limited to, which
poles are desired for Attachment and the size, type and number of the
cables Licensee wishes to attach. If any modifications to APS' planned
construction are necessary to accommodate the Cable, Licensee shall
specify this on the response. If APS' service requirements demand a
shorter response t ime than thirty (30) calendar days, Licensee shall
cooperate with APS to address these needs within the required time
frame. If no response is received by APS from Licensee on the Memo
within thirty (30) calendar days of the transmittal then it will be
deemed that none of the poles indicated on the Memo are desired for
the attachment of Communication Facili ties and no provisions will
have been made for the attachment of Cable. If transfer of the Cable
ASET Essential Infrastructure for Information Delivery Appendices Page 120
to a new pole is required, the transfer shall be done within fourteen
(14) calendar days after receipt of notice that APS' work is completed.
2.3. In the event it is determined that a new pole to which Licensee desires
to attach, requires an upgrade in its planned height or class to
accommodate the Cable, Licensee will be responsible for the difference
in cost between APS' planned installation and the installation
necessary to meet Licensee's requi rements.
2.4. If APS notifies Licensee that removal of Cable is required to
accommodate rearrangement of existing facilities or attachment of
additional facilities of APS or a Joint Pole Participant, Licensee shall
have the option, within the t ime frame specifi ed by APS, to request a
pole replacement as needed to continue attachment of the Cable.
Licensee will be responsible for all costs to APS and Joint Pole
Participant for replacement of the APS Pole and transfer of existing
facili ties.
2.5. If APS notifies Licensee that rearrangement of Cable is necessary
Licensee shall, within thirty days (30) days of receipt of the Memo,
perform such rearrangements. Licensee will be responsible for all
costs it incurs for such rearrangement as necessary to meet the
requirements of APS or a Joint Pole Participant. If APS notifies
Licensee that removal or rearrangement of Cable is required and
Licensee refuses to perform these removals or rearrangements within
the required time frame, APS may remove or rearrange the facilities,
without any liability on the part of APS, and Licensee will be
responsible for APS' costs to perform such removals or
rearrangements.
2.6. APS will proceed with construction on the project represented by the
Memo in accordance with its normal workload schedule. APS may
adjust this schedule at any time to satisfy its own service requirements.
APS will notify Licensee upon completion of the construction.
3. ANCHORS
3.1. Licensee may attach its guy wire to an existing Anchor where adequate
capacity is available, in accordance with the standards set forth in
Section 12.2, APPLICABLE STANDARDS, upon obtaining written
authorization from APS. The authorization to attach to an existing
APS anchor shall be evidenced by APS notation on the field survey
notes or Memo. In any other case, a separate written authorization
must be obtained from APS prior to Licensee's use of any or each APS
anchor. Licensee shall secure any necessary right -of-way therefor
from the appropriate property owner.
3.2. Should APS, Other Licensee, and/or Joint Pole Participant attached to
the Anchor for its own service requirements, need to increase its load
on the Anchor to which Licensee's guy wire is attached, Licensee shall,
if necessary, either remove, rearrange its guy wire on the Anchor or
ASET Essential Infrastructure for Information Delivery Appendices Page 121
transfer it to a replacement Anchor, as determined by APS in its sole
discretion. Any such removal, rearrangement and/or transfer of
Licensee's guy wire and the placement of a new Anchor or replacement
of an existing Anchor by APS to accommodate Licensee's guy wire
shall be at Licensee's expense.
3.3. If Licensee does not remove, rearrange or transfer its guy wire within
thirty (30) days following the date of the Memo or other written notice
from APS regarding such requirements APS may perform the work
involved and Licensee shall pay the full costs thereof, without liability
on the part of APS.
3.4. Should Licensee install any anchors to accommodate its guy wire, the
types and general placement of Licensee's anchors shall be approved
by APS prior to installation. Licensee shall b e responsible for
obtaining, and having marked, the locations of all underground
facili ties, including the underground electric facilities of APS, in
connection with and prior to any such installation. Any such anchor
shall be placed so that Licensee's gu y wire does not cross any guy wire
of APS.
4. INSTALLATION OF CABLE
4.1. After receipt of authorization from APS to attach to APS Poles,
Licensee shall install and maintain the Cable in accordance with the
standards indicated in Section 12.2, APPLICABLE STANDARDS at its
own risk and expense, so as not to interfere with the use and operation
of APS Poles by APS or others. All Cable authorized by a License for
attachment to APS Poles shall be installed and energized within one
hundred twenty (120) days from the date of APS' authorization for
attachments provided, however, that Make-Ready Work for other APS
Poles necessary for such energization, if any, has been completed.
APS shall specify the general area on each APS Pole at which the
Cable shall be attached. If construction is not completed within said
one hundred twenty (120) day time frame a second field survey may be
required, at Licensee's expense, to determine any changes in the field
that would impact make ready requirements.
4.2. Licensee shall notify APS, in wr iting, within thirty (30) days after
completion of the installation of Cable.
4.3. If, prior to completion of the installation of the Cable authorized by a
License for at tachment to APS Poles, APS receives a request from a
third party for attachment to the same APS Pole(s), APS shall verbally
notify Licensee within twenty-four (24) hours thereof, followed by
writ ten confirmation. Thereafter Licensee shall complete the
installation of the Cable during the remainder of its one hundred
twenty (120) day installation period, if any, or within fifteen (15) days
of receipt of such verbal notice, whichever is greater. Should Licensee
fail to complete the installation of the said Cable within the allowed
ASET Essential Infrastructure for Information Delivery Appendices Page 122
period, the License for such attachment to APS Poles shall thereby be
automatically revoked. APS shall reimburse Licensee for all charges
paid by Licensee for any such Make-Ready Work, upon receipt by APS
of third party applicant 's payment for such Make -Ready Work, but
Licensee shall not be entitled to reimbursement for any Annual
Attachment Fees paid by Licensee.
4.4. If Licensee, at any time, intends to use an alternate source of
electricity to energize any part of the Cable, the electrical connection
for such alternate source of electricity shall be made utilizing a single
pole, double throw switch. All such contemplated installations must
be approved in writing by an authorized representative of APS, prior to
any such installation.
5. INSPECTION OF CABLE
5.1 Final Inspection
After Licensee has completed installation of Cable , pursuant to Appendix
C, Section 4, APS will perform an inspection of the attachments. This
inspection may also include, if appropriate, representatives for Other
Licensee and/or Joint Pole Participant. Licensee shall provide a
representative to participate in this inspection and shall reimburse APS all
costs of performing such inspection. If any attachments are found to be in
violation of Section 12.2, APPLICABLE STANDARDS, Licensee shall be
responsible for correcting all such violations and shall reim burse APS the
cost of any addit ional Make-Ready Work that may be required for such
correction. Any such corrective work shall also be subject to inspection
by APS.
5.2 Periodic Inspection
APS may make periodic inspections of any part of the Cable, and Lic ensee
shall reimburse APS for one (1) inspection every twenty -four (24)
months; for any such inspection resulting from a serious safety violation
or a series of three or more violations of the standards set forth in Section
12.2, Applicable Standards, during a twelve (12) month period; or for
inspections made in connection with any unauthorized attachment to poles
or anchors of APS. Such reimbursement shall be as set forth in Appendix
A, SCHEDULE OF FEES AND CHARGES. APS shall give Licensee
advance written notice of such inspections, except in those instances
where, in the sole judgement of APS, safety considerations justify the
need for such an inspection without the delay of waiting until a writ ten
notice has been forwarded to Licensee. The making of pe riodic
inspections, or the failure to do so, shall not operate to relieve Licensee
of any responsibility, obligation or liabili ty assumed under this
Agreement.
6. MODIFICATION OF CABLE
6.1. In the event Licensee modifies existing Cable, Licensee shall notify
ASET Essential Infrastructure for Information Delivery Appendices Page 123
APS by Application.
6.2. Modifications to existing Licensee attachments shall be treated in the
same manner as new attachment requests and shall be addressed
pursuant to Section 1, LICENSE BY APPLICATION.
7. REMOVAL OF CABLE
7.1. In the event Licensee chooses to remove its Cable, Licensee shall
notify APS by Exhibit B, Notification of Termination of Pole License
by Licensee, with current copies of exhibits attached to the form,
indicating poles from which attachments have been removed. Once
APS receives the Notification of Termination, APS shall perform an
inspection to ensure that the Cable has been removed and once verified
the exhibit and attachment database shall be modified. The modified
number of attachments shall be applied to the next annual at tachment
fee year.
ASET Essential Infrastructure for Information Delivery Appendices Page 124
Send all APS forms, job packages to: APS, Attn: Joint Use, Mail Station 9505,
P.O. Box 53999, Phoenix, AZ 85072-3999
Send all Telephone Company forms , job packages to: Appropriate Telephone
Company contact
Send APS remittance to: APS, Attn: Cash Management, P.O. Box 53920, Mail
Station 9996, Phoenix, AZ 85072-3920
APS Engineering contact: Art Taddei, (602) 371-6479
Any questions, please call: Brenda Bayless, (602) 250 -3478, FAX (602) 250-
3388, Internet address- [email protected]
ASET Essential Infrastructure for Information Delivery Appendices Page 125
Exhibit - A
APPLICATION FOR POLE LICENSE OR
MODIFICATION TO EXISTING CABLE
ARIZONA PUBLIC SERVICE COMPANY Application/Modif ication No.__________
P.O. BOX 53999 STATION 9505
PHOENIX, ARIZONA 85072-3999 Date: ____________________________
Town: ___________________________ Application is hereby made for a License to install, maintain, and operate Cable upon APS Poles as specified on the attached drawing(s) and information sheet.
Licensee:____________________________________
Agreement No:_______________________________
Submitted by:________________________________
PLEASE SUBMIT SEPARATE FORM FOR EACH QUARTER SECTION APPLICATION FOR NEW ATTACHMENT? YES____________NO_____________
MODIFICATION TO EXISTING CABLE? YES____________NO_____________ If modification, attached information includes full description of said Modification/New Design.
Actual number of new attachments to APS Poles determined on field survey: ______ Make-Ready Work Required APS _______ TELCO_________NONE______________
JOB #_____________
WA #_____________
Statement of Bi l l ing #________
A License is hereby granted for attachment/modification of Cable to the APS Poles specified on the attached drawing(s), subject to the terms and conditions of the License Agreement referenced above. This License is conditioned upon receipt of Licensee's payment for Make-Ready Work, if any, and any initial Attachment Fee, per the attached invoice. APS shall not perform any Make-Ready Work until receipt of such payment. Licensee shall not attach or modify its facilities until receipt of written authorization from APS and any other Joint Pole Participant, in the form of a release letter. Licensee intends to construct plant within 120 days of receipt of said release. All attachments/modifications are subject to final inspection by APS.
Arizona Public Service Company
Date____________________ By___________________________________
Licensee____________________________________
Date________________________ By_______________________________
Number of poles to be reviewed
APS Poles TELCO Poles
Township Range Quarter Section
Certification to be completed I hereby certify that upon construction completion, Cable will fully comply with the applicable rules of the NESC, other codes and requirements, and good engineering design. By: ____________________ _____________________ Title: _______________________________________________ Licensee Representative
ASET Essential Infrastructure for Information Delivery Appendices Page 126
Exhibit - B
NOTIFICATION OF TERMINATION
OF POLE LICENSE BY LICENSEE
ARIZONA PUBLIC SERVICE COMPANY Termination No.______________________ P.O. BOX 53999 STATION 9505 PHOENIX, ARIZONA 85072-3999 Date:_____________________________
Town:____________________________ Notice is hereby given that the License covering attachment of Cable to APS Poles is terminated as specified on the attached drawing(s). Licensee:____________________________________________
Agreement No:_______________________________________
Submitted by:________________________________________
Township Range Quarter Section Number of APS Poles
Actual number of attachments to APS Poles to be terminated per field survey: ___________
License is hereby terminated for attachment of Cable to the APS Poles specified on the attached drawing(s).
Arizona Public Service Company
Date: _________________________ By: __________________________________
Licensee: ___________________________________
Date: ______________________________ By: ________________________________________
